COLON v. ZICKEFOOSE

Filing 20

OPINION. Signed by Judge Robert B. Kugler on 12/9/2013. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
CARLOS M. COLON,
:
:
Petitioner,
:
:
v.
:
:
DONNA ZICKEFOOSE,
:
:
Respondent.
:
_________________________________________ :

Civ. No. 12-3433 (RBK)
OPINION

ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a federal prisoner who was incarcerated at F.C.I. Fort Dix in Fort Dix, New
Jersey at the time he filed the instant federal habeas petition. 1 Petitioner is proceeding pro se
with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner requests that
thirty-six days be added to his good time credits. For the following reasons, the habeas petition
will be denied.
II.

BACKGROUND

Petitioner requests that thirty-six days be added to his good time credits because he was
only awarded forty-two days of good time credits for three years instead of fifty-four days of
good time credits. Petitioner claims that he was improperly only awarded forty-two days instead
of fifty-four days for his purported failure to attend GED classes. (See Dkt. No. 1 at p. 2.)
Petitioner states that his attendance to GED class was interrupted because of court appearances
whereby a federal writ was issued for his appearance. (See id.) Thus, accordingly to petitioner,
he was temporarily unable to participate in the GED class due to special circumstances beyond
1

Petitioner is currently incarcerated at F.C.I. Sandstone in Sandstone, Minnesota.
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his control. (See id. at p. 3.) He also states that he was entitled to notice and an opportunity to
be heard on this issue. Petitioner pursued his request for an additional thirty-six days of good
time credit through administrative appeals that were denied.
Respondent filed an answer on November 2, 2012. Respondent contends that petitioner
was properly awarded forty-two days as opposed to fifty-four days of good time credit for the
three-year time period at issue. Respondent states that petitioner was only entitled to forty-two
days of good time credit because he voluntarily withdrew from the GED program in March,
2005. According to respondent, petitioner re-enrolled in the GED program in September, 2005.
Petitioner’s status was changed from GED unsatisfactory to GED satisfactory in June, 2007,
after he had completed an additional 240 instructional hours towards the GED program. (See id.
at p. 7.)
Petitioner filed a reply on November 29, 2012. (See Dkt. No. 10.) He states in his reply
that he did not voluntarily withdraw from the GED program and was not counseled about his
decision to withdraw by a staff member. He claims that respondent’s assertion that he
voluntarily withdrew from the program is not supported by the evidence.
In light of petitioner’s reply, the Court ordered respondent to file a supplemental answer.
On August 16, 2013, respondent filed a supplemental answer which included petitioner’s
program review report from June 30, 2005. (See Dkt. No. 12-2 at p. 4-6.) Petitioner filed a reply
to respondent’s supplemental answer on November 26, 2013. (See Dkt. No. 18.)
III.

STATUTORY AND LEGAL FRAMEWORK

Federal law establishes a mandatory functional literacy program as follows:
(1) The Attorney General shall direct the Bureau of Prisons to have
in effect a mandatory functional literacy program for all mentally
capable inmates who are not functionally literate in each Federal

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correctional institution within 6 months from the date of the
enactment of this Act.
(2) Each mandatory functional literacy program shall include a
requirement that each inmate participate in such program for
mandatory period sufficient to provide the inmate with an adequate
opportunity to achieve functional literacy, and appropriate
incentives which lead to successful completion of such programs
shall be developed and implemented.
(3) As used in this section, the term “functional literacy” means –
(A) an eighth grade equivalence in reading and
mathematics on a nationally recognized
standardized test;
(B) functional competency or literacy on a
nationally recognized criterion-referenced test; or
(C) a combination of subparagraphs (A) and (B).
18 U.S.C. § 3624(f). Federal regulations also provide that:
an inmate in a federal institution who does not have a verified
General Educational Development (GED) credential or high school
diploma is required to attend an adult literacy program for a
minimum of 240 instructional hours or until a GED is achieved,
whichever occurs first.
28 C.F.R. § 544.70. Furthermore, prison “staff may take disciplinary action against an inmate
lacking a GED credential or high school diploma if that inmate refuses to enroll in, and to
complete, the mandatory 240 instructional hours of the literacy program.” Id. § 544.75.
Federal law also includes a non-mandatory provision whereby federal prisoners may
receive credit toward the service of their sentences for satisfactory behavior, subject to (among
other things) an inmate’s completion of, or “satisfactory progress” toward a GED credential or
high school diploma; specifically:
Subject to paragraph (2), a prisoner who is serving a term of
imprisonment of more than 1 year[,] other than a term of
imprisonment for the duration of the prisoner’s life, 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
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that, during that year, the prisoner has displayed exemplary
compliance with institutional disciplinary regulations. Subject to
paragraph 2, if the Bureau determines that, during that year, the
prisoner has not satisfactorily complied with such institutional
regulations, the prisoner shall receive no such credit toward service
of the prisoner’s sentence or shall receive such lesser credit as the
Bureau determines to be appropriate. In awarding credit under this
section, the Bureau shall consider whether the prisoner, during the
relevant period, has earned, or is making satisfactory progress
toward earning, a high school diploma or an equivalent degree. . . .
(2) Notwithstanding any other law, credit awarded under this
subsection after the date of enactment of the Prison Litigation
Reform Act shall vest on the date the prisoner is released from
custody.
18 U.S.C. § 3624(b). The Bureau of Prisons has promulgated regulations which govern the
award of good time credits under § 3624(b); specifically:
(c) For inmates serving a sentence for an offense committed on or
after April 26, 1996, the Bureau will award
(1) 54 days credit for each year served (prorated
when the time served by the inmate for the sentence
during the year is less than a full year) if the inmate
has earned or is making satisfactory progress
toward earning a GED credential or high school
diploma; or
(2) 42 days credit for each year served (prorated
when the time served by the inmate for the sentence
during the year is less than a full year) if the inmate
has not earned or is not making satisfactory
progress toward earning a GED credential or high
school diploma.
28 C.F.R. § 523.20(c). Additional regulations also explain what constitutes not making
“satisfactory progress toward earning a GED”:
(b)(1) For the purposes of 18 U.S.C. § 3624, an inmate subject to
the Violent Crime Control and Law Enforcement Act of 1994
(VCCLEA) or the Prison Litigation Reform Act of 1995 (PLRA)
shall be deemed to be making satisfactory progress toward earning
a GED credential or high school diploma unless and until the
inmate receives a progress assignment that:
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(i) The inmate refuses to enroll in the literacy
program;
(ii) The inmate has been found to have committed a
prohibited act that occurred in a literacy program
during the last 240 instructional hours of the
inmate’s most recent enrollment in the literacy
program; or
(iii) The inmate has withdrawn from the literacy
program.
(2) When an inmate subject to the VCCLEA or PLRA receives a
progress assignment indicating that the inmate is not making
satisfactory progress, the assignment shall be changed to indicate
satisfactory progress only after the inmate is currently and
continuously enrolled in a literacy program for a minimum of 240
instructional hours. Any further withdrawal or finding that the
inmate has committed a prohibited act in a literacy program during
the last 240 instructional hours of the inmate’s most recent
enrollment in the literacy program shall result in a progress
assignment indicating that the inmate is again not making
satisfactory progress (see paragraphs (b)(1)(ii) and (iii) of this
section).
28 C.F.R. § 544.73(b). Federal Bureau of Prisons (“BOP”) Program Statement 5250.28 provides
additional instruction to its “education staff and inmates how the Bureau operates its literacy
program.” BOP Program Statement 5050.28 at p. 1, available at
http://www.bop.gov/policy/progstat/5350_028.pdf (last visited December 4, 2013). More
specifically, the Program Statement instructs the staff as follows:
e. Entering Progress Assignment in SENTRY. You should use
the UPDATE INMATE ASSIGNMENT SENTRY transaction to
enter EDI GED Needs and Progress Assignments for all inmates.
Use one of two literacy program EDI Progress Assignments to
record GED progress:
•
•

GED SAT for satisfactory progress and
GED UNSAT for unsatisfactory progress.

(1) Give an EDI GED Progress Assignment of GED SAT to an
inmate when he/she completes the first 240 instructional hours in
the literacy program if he/she
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•
•

•

continues to remain in the program and
does not have an incident report showing that he/she
was found guilty of an earlier violation in a literacy
program. If found guilty, he/she will be given a
GED UNSAT Progress Assignment and he/she will
have to complete another 240 instructional hours
before he/she can receive a GED SAT Progress
Assignment. The instructional hours prior to the
incident report will not be counted toward the 240
instructional hours for the GED SAT Progress
Assignment.
If an inmate withdraws voluntarily (regardless of
the deportation status) from the GED program,
he/she will need to complete another 240
instructional hours before he/she can receive a
GED SAT Progress Assignment.
The instructional hours from his/her previous
enrollment will not be counted toward the 240
instructional hours needed for the GED SAT
Progress Assignment.
If the inmate attains his/her GED credential during
the initial 240 hours, do not assign him/her a
progress statement. If an inmate attains his/her
GED credential after the initial 240 hours, his/her
current progress assignment should be removed.

....
(2) Give an EDI GED UNSAT Progress Assignment to any inmate
who
•
•

•

refuses to enroll in the literacy program;
is found guilty of a violation in a literacy program.
The effective date of the EDI GED UNSAT
Progress Assignment is the date when the Unit
Discipline Committee (UDC) or Discipline Hearing
Officer (DHO) finds the inmate guilty.
Once found guilty of a Prohibited Act that occurs in
the literacy program, he/she will have to complete
another 240 instructional hours before he/she can
have a GED SAT Progress Assignment; or
drops out of the literacy program after 240
instructional hours. The inmate may not be deemed
to be making satisfactory progress with respect to
the VCCLEA and the PLRA.
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However, he/she will be deemed to meet the
mandatory literacy attendance (240 instructional
hours) requirement.
BOP Program Statement 5350.28 at p. 30-31 (bolded text in original; additional emphasis
added).
The Bureau of Prisons application of its regulations is entitled to deference from this
Court. See Livingood v. Longley, No. 11-19, 2012 WL 1247120, at *6 (W.D. Pa. Apr. 13, 2012)
(citing Chevron U.S.A. v. Nat’l Res. Def. Council, 467 U.S. 837 (1984)), aff’d by, Livengood v.
Bureau of Prisons, 503 F. App’x 104 (3d Cir. 2012) (per curiam). However, program statements
are only given “some deference” “because the statements are merely internal agency guidelines
that the BOP may alter at will.” See King v. Shultz, 408 F. App’x 548, 551 (3d Cir. 2010) (per
curiam) (citing Stiver v. Meko, 130 F.3d 574, 578 (3d Cir. 1997)).
IV.

DISCUSSION

Section 2241 states in relevant part that the writ of habeas corpus shall not extend to a
prisoner unless “[h]e is in custody in violation of the Constitution or laws . . . of the United
States.” 28 U.S.C. § 2241(c)(3). The issue of whether petitioner is entitled to an additional
thirty-six days of good time credits hinges on a factual question; specifically, whether petitioner
voluntarily withdrew from the GED program in 2005. As the statutory and regulatory
framework outlined above indicates, if petitioner voluntarily withdrew from the GED program in
2005, then he would not be entitled to fifty-four days of good time credits, but rather would be
entitled to only forty-two days of good time credits until such time as he re-enrolled in the GED
program and attained another 240 instructional hours. See Livingood, 2012 WL 1247120, at *6
(citing BOP Program Statement 5350.28). For the following reasons, the habeas petition will be

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denied as the evidence indicates that petitioner voluntarily withdrew from the GED program in
March, 2005.
Petitioner argues in his petition that he did not voluntarily withdraw from the GED
program. Instead, petitioner claims that he “is entitled to relief under Program Statement
5250.28, as his GED class was interrupted due to the special circumstances which was beyond
his control, namely court appearance on FEDERAL WRIT.” (Dkt. No. 1 at p. 6.) Petitioner is
correct that inmates who are temporarily unavailable due to transfer on a writ are not required to
attend a literacy program. See 28 C.F.R. § 544.71(b). While petitioner was transferred on a
federal writ on July 12, 2005 (see Dkt. No. 9-1 at p. 18.), his purported voluntary withdrawal
from the GED program occurred well prior to that date, in March, 2005. (See Dkt. No. 9-1 at p.
20, 24; Dkt. No. 12-2 at p. 4.) Thus, the Court finds that petitioner fails to show that his transfer
of a writ caused his involuntary withdrawal from the GED program.
In his reply to the original answer, petitioner asserts that the respondent has failed to
show that he in fact had voluntarily withdrawn from the GED program in March, 2005. In light
of petitioner’s reply, the Court ordered respondent to file a supplemental answer and to respond
to “Petitioner’s assertion that he did not withdraw from the GED program and that he was not
counseled about his decision to withdraw by a staff member[.]” (Dkt. No. 11 at p. 1.)
Respondent’s supplemental answer includes a program review report dated June 30,
2005. An inmate typically has a program review every six months where his goals and
programming are discussed. (See Ainsworth Decl. ¶ 4.) The program review report indicates in
the “Progress Made Since Last Review” section that GED was dropped on 3/05 and that
petitioner is still receiving an unsatisfactory and losing twelve days good time credit per year.
(See Dkt. No. 12-2 at p. 5.) Petitioner signed this program review report on July 6, 2005, along

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with Michele Picerno, who is a case manager with the BOP. The Court finds that petitioner’s
signature on this program review statement indicates that, notwithstanding petitioner’s current
assertions in the instant habeas petition to the contrary, he withdrew from the GED program in
March, 2005. Indeed, petitioner’s signature on the progress review report is an indication of
petitioner’s acknowledgement of his voluntary withdrawal as the report indicates that petitioner
was losing twelve days of good time credits.
As petitioner voluntarily withdrew from the GED program after he had completed 240
hours, he could only then receive fifty-four days of good time credit per year once he attained an
additional 240 instructional hours. See BOP Program Statement 5350.28 at p. 30. Therefore,
petitioner is not entitled to an additional thirty-six days of good time credit. He was properly
awarded only forty-two days of good time credit as opposed to fifty-four days of good time
credit as he could not obtain a satisfactory progress designation until such time as he completed
another 240 instructional hours. See id.
Finally, petitioner argues that his due process rights were violated. Petitioner claims that
he was entitled to notice and an opportunity to be heard with respect to the deprivation of his
liberty interest to earn good time credits. (See Dkt. No. 1 at p. 6.) Nevertheless, petitioner fails
to show that his due process rights were violated. Indeed, “although the Supreme Court has
found that the loss of good conduct time entitles a prisoner to appropriate due process, see Wolff
v. McDonnell, 418 U.S. 539, 556-57 (1974), [p]etitioner has no liberty interest in the opportunity
to earn good conduct time.” Livingood, 2012 WL 1247120, at *7 (citing Luken v. Scott, 71 F.3d
192, 193 (5th Cir. 1995); Conlogue v. Shinbaum, 949 F.2d 378, 380 (11th Cir. 1991); see also
Shockley v. Hosterman, No. 07-216, 2007 WL 1810480, at *3 (D. Del. June 22, 2007) (“[T]he
Due Process Clause does not guarantee the right to earn good-time credits.”) (citing Abdul-Akbar

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v. Dep’t of Corr., 910 F. Supp. 986, 1003 (D. Del. 1995)). In this case, petitioner’s good time
credits were not taken away, instead, petitioner simply lost the ability to earn an additional
twelve days of good time credits by voluntarily withdrawing from the GED program.
V.

CONCLUSION

For the foregoing reasons, the habeas petition will be denied. An appropriate order will
be entered.

DATED:

December 9, 2013
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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