Harper v. United States Attorney General et al

Filing 14

MEMORANDUM AND ORDER ENTERED: The petition for writ of habeas corpus is denied. Signed by U.S. Senior District Judge Sam A. Crow on 11/07/17. Mailed to pro se party Don Alton Harper by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DON ALTON HARPER,
Petitioner,
v.

CASE NO. 17-3088-SAC

NICOLE ENGLISH, Warden,
USP-Leavenworth,
Respondent.
MEMORANDUM AND ORDER
Petitioner, a pro se prisoner in federal custody, challenges the calculation of his federal
sentence under 28 U.S.C. § 2241.

The Court issued an Order to Show Cause (Doc. 7),

Respondent filed an Answer and Return (Doc. 12), Petitioner filed a Traverse (Docs. 10, 13), and
the matter is ready for resolution.

The Court finds that Petitioner does not allege facts

establishing a federal constitutional violation and denies relief.
I. Background
Petitioner is incarcerated with the Federal Bureau of Prisons (“BOP”), and is currently
designated for service of his federal sentence at the Residential Reentry Center (“RRC”) GEO
Reentry, Inc., located in Leavenworth, Kansas.1 Petitioner was sentenced in the District of
Kansas on March 28, 1994, and is serving an aggregate 341-month term of imprisonment for
Bank Robbery in violation of 18 U.S.C. § 2113 and Use and Carry of a Firearm During the
Commission of a Crime of Violence in violation of 18 U.S.C. § 924(c). (Doc. 12–1, at 19–20.)

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Respondent notes that Melissa Acevedo, the Residential Reentry Manager for the Kansas City Residential
Reentry Office, is the proper respondent for this habeas petition. See Rumsfeld v. Padilla, 542 U.S. 426, 439–42
(2004) (warden of the facility in which an inmate is incarcerated is the “immediate custodian” and the proper
respondent to a § 2241 habeas petition).
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Petitioner has a projected release date of January 16, 2018, via good conduct time release.

Id.

at 18.
II. Facts
On February 2, 1993, Petitioner was arrested by the Federal Bureau of Investigation in
Denver, Colorado, for bank robbery, and subsequently stood trial in the Western District of
Missouri.2 On November 16, 1993, Petitioner was found not guilty and the Western District of
Missouri entered a judgment of acquittal on November 22, 1993. United States v. Tyler, et al.,
4:92–cr–00196–DBB–2 (W.D. Mo.); Doc. 12–1, at 88.
On November 16, 1993, the USMS relinquished custody of Petitioner to the District of
Kansas pursuant to an indictment issued in United States v. Harper, 2:93–cr–20069–JWL–01 (D.
Kan.). (Doc. 12–1, at 91.) Petitioner remained in continuous federal custody for both his
Missouri and Kansas federal cases.
The jury in Petitioner’s Kansas federal case found him guilty of Bank Robbery, and Use
and Carry of a Firearm During the Commission of a Crime of Violence on March 28, 1994. See
Doc. 12–1, at 94. Petitioner was sentenced to a 341-month aggregate term of imprisonment. Id.
at 96. On June 26, 1995, after filing multiple appeals, Petitioner was re-sentenced in his Kansas
federal case, and was again sentenced to a 341-month aggregate sentence. Id. at 101–02.
III. Discussion
1. Exhaustion
Generally, a federal prisoner must exhaust available administrative remedies before
commencing a habeas corpus petition under 28 U.S.C. § 2241. Williams v. O’Brien, 792 F.2d

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The United States Marshals Service (“USMS”) tracking form indicates Petitioner was arrested on February 3,
1993. (Doc. 12–1, at 70.) Nevertheless, the BOP calculated Petitioner’s sentence relying on the Presentence
Investigation Report (“PSR”), indicating Petitioner was arrested on February 2, 1993, thereby crediting Petitioner
with an additional day of service toward his sentence. Id. at 5.
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986, 987 (10th Cir. 1986) (per curiam). The BOP’s four-part administrative remedy program is
codified at 28 C.F.R. § 542.

Respondent acknowledges that Petitioner has exhausted his

administrative remedies with respect to the issues presented in his Petition. (Doc. 12, at 4;
Doc. 12–1, at 3.)
2. Standard of Review
To obtain habeas corpus relief, an inmate must demonstrate that “[h]e is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S. C. § 2241(c)(3).
3. Sentence Computation
Petitioner alleges that the BOP improperly calculated his federal sentence. Petitioner
argues that he overserved his sentence “under an 85% interpretation” under BOP Program
Statement (“PS”) 5100.08 because the DSCC failed “to subtract jail credit and prior jail credit
from the full term date.” Presumably, Petitioner is referring to Chapter 4, Page 6, of PS 5100.08,
which describes how to enter information in the Security Designation Data section of the Inmate
Load and Security Designation form (BP-337).

Under “Months to Release,” the following is

stated: “Based on the inmate’s sentence(s), enter the total number of months remaining, less
15% (for sentences over 12 months), and credit for any jail time served.” PS 5100.08, Ch. 4, P. 6
(9/12/2006). The “months to release” calculation set forth in PS 5100.08 reflects only an
“estimated number of months the inmate is expected to be incarcerated.” Id. (emphasis added).
PS 5100.08 pertains to the security and classification of inmates, not to the computation
of sentences or Good Conduct Time (“GCT”). See id. at 1 (“This Program Statement provides
policy and procedure regarding the Bureau of Prisons inmate classification system”); Peterson v.
Drew, No. 2:08cv40–SRW (WO), 2009 WL 4067794, at *2 (M.D. Ala. Nov. 23, 2009)
(“PS 5100.08 pertains to the security and classification of inmates, not to the calculation of

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sentences.”); Crawford v. Reese, No. 5:07–CV–140–DCG–MTP, 2009 WL 2019104, at *2 (S.D.
Miss. June 29, 2009); La Gatta v. Berkebile, No. 3–07–CV–1519–P, 2008 WL 682385, at *2
(N.D. Tex. Mar. 6, 2008) (holding that PS 5100.07, predecessor to 5100.08, “is to assist prison
officials in classifying inmates for security purposes,” and “does not apply to the calculation of
good conduct time”); Perez v. Lindsay, No. 1:CV–05–2045, 2006 WL 2882966, at *2–3 (M.D.
Pa. Oct. 6, 2006) (holding that both PS 5100.08 and PS 5100.07 are unrelated to the calculation
of GCT).
a. Prior Custody Credit
In accordance with statute, the BOP determines the date a federal sentence commences as
the date in which “the defendant is received in custody awaiting transportation to, or arrives
voluntarily to commence service at, the official detention facility at which the sentence is to be
served.” 18 U.S.C. § 3585(a). The earliest time a sentence can commence is the date of
imposition of the federal sentence. See Isles v. Chester, Case No. 08-3028-RDR, 2009 WL
1010553, at *4 (D. Kan. April 15, 2009) (citing DeMartino v. Thompson, 1997 WL 362260, at
*2 (10th Cir. July 1, 1997) (“Logically, [a federal sentence] cannot commence prior to the date it
is pronounced, even if made concurrent with a sentence already being served.”)). The BOP
determined that Petitioner’s federal sentence commenced on March 28, 1994, the date of
imposition of his federal sentence.
Prior custody credit is provided for in Section 3585(b), which states:
A defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention prior
to the date the sentence commences—
(1) as a result of the offense for which the sentence was
imposed; or
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which
the sentence was imposed;
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that has not been credited against another sentence.
18 U.S.C. § 3585(b).
Petitioner received 419 days of prior custody credit, for time spent in federal custody
from February 2, 1993, the date he was arrested by the USMS, to March 27, 1994, the day before
his sentence in his Kansas federal case was imposed. The BOP properly calculated Petitioner’s
prior custody credit.
b. Good Conduct Time
“Federal sentencing law permits federal prison authorities to award prisoners credit
against prison time as a reward for good behavior.” Barber v. Thomas, 560 U.S. 474, 476
(2010). GCT is awarded in accordance with Section 3624(b), which provides:
[A] prisoner who is serving a term of imprisonment of more than 1
year . . . may receive credit toward the service of the prisoner’s
sentence, beyond the time served, of up to 54 days at the end of
each year of the prisoner’s term of imprisonment, beginning at the
end of the first year of the term, subject to determination by the
Bureau of Prisons that, during that year, the prisoner has displayed
exemplary compliance with institutional disciplinary regulations.
18 U.S.C. § 3624(b).
The BOP has interpreted § 3624(b) to authorize it to award GCT only for time actually
served rather than for the length of the sentence imposed. Program Statement 5880.28 provides
that “[i]t is essential to learn that GCT is not awarded on the basis of the length of the sentence
imposed, but rather on the number of days actually served.” PS 5880.28, p. 1–48 (February 21,
1992); Doc. 12–1, at 63.
The BOP’s interpretation was upheld by the Supreme Court in Barber v. Thomas, 560
U.S. 474 (2010). The Supreme Court noted that the previous good time provision entitled a
prisoner to a deduction from the term of his sentence beginning with the day on which the

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sentence commenced to run; and provided for a forfeiture if the prisoner committed an offense or
violated rules of the institution. Id. at 481. In contrast, the current statute “creates a system
under which ‘credit’ is ‘earned’ ‘at the end of’ the year based on an evaluation of behavior
‘during that year.’” Id. The Supreme Court found that the current statute reveals “a purpose to
move from a system of prospective entitlement to a system of retrospective award.” Id. The
Supreme Court found that the BOP’s method used to calculate GCT based on the time the
prisoner actually served, rather than the length of the sentence imposed, is supported by the
statute’s language and furthers the statute’s basic purpose. Id. at 480–82; see also Wright v. Fed.
Bureau of Prisons, 451 F.3d 1231, 1234–35 (2006) (upholding BOP’s interpretation and noting
that the statute contemplates retrospective annual assessment of a prisoner’s behavior and
prisoners cannot earn good time credits for time they are not in prison).
While Petitioner was initially sentenced to 341 months of imprisonment on March 28,
1994, due to prior custody credit of 419 days, the end of Petitioner’s first year in prison was
February 1, 1994, for purposes of calculating GCT. Accordingly, as of February 2, 2017,
Petitioner had served twenty-four full years of his sentence and could have earned 1,296 days of
GCT (24 x 54=1296). However, since Petitioner was disallowed eighty-two days GCT, he only
earned 1,214 days of GCT, thereby shortening his sentence by more than three years. See
Doc. 12–1, at 107.
As of February 2, 2017, Petitioner had 399 days remaining on his sentence. When credit
for GCT reduces the last year of the sentence to less than a full year, it is impossible to accrue
the full 54 days GCT, and the amount of GCT earned is prorated by the time actually served in
the last year. See id. at 109–114. PS 5880.28 provides a chart from which a prisoner can look
up how many days remain on his sentence, which then “shows the proper combination of days

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served and pro-rated GCT that, when added together, equal the days remaining.” Kikumura v.
Hood, 467 F.3d 1257, 1259–60 (10th Cir. 2006). The calculation is always .148 days of GCT for
each day actually served, taking into account the BOP’s method of rounding fractions. Id. at
1260. Because the result is readily available from the chart, the Tenth Circuit has found the
calculation to be neither “deceptive [n]or fraudulent” and properly based on time actually served.
Id.
Petitioner will earn fifty-one days of GCT for the remaining 399 days on his sentence.
See Doc. 12–1, at 113. Petitioner will therefore only serve 348 days in the final year, making his
projected release date January 16, 2018.
IV. Conclusion
Because PS 5100.08 pertains to the security and classification of inmates, not to the
computation of sentences or GCT, Petitioner’s reliance on PS 5100.08 for calculation of his
sentence is misplaced.

The BOP properly calculated Petitioner’s prior custody credit and

projected GCT. Accordingly,
IT IS THEREFORE ORDERED BY THE COURT that this petition for writ of habeas
corpus is denied.
IT IS SO ORDERED.
Dated in Topeka, Kansas, on this 7th day of November, 2017.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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