Sash v. Zenk, 04-CV-2476 (NGG).

• Decision Date: 09 November 2004
• Docket Number: No. 04-CV-2476 (NGG).,04-CV-2476 (NGG).
• Parties: Eliot S. SASH, Petitioner, v. Michael ZENK, Warden, et. al., Respondent.
• Court: U.S. District Court — Eastern District of New York

344 F.Supp.2d 376

Eliot S. SASH, Petitioner, v. Michael ZENK, Warden, et. al., Respondent.

No. 04-CV-2476 (NGG).

United States District Court, E.D. New York.

November 9, 2004.

David A. Lewis, Brooklyn, NY, for Plaintiff.

Emily E. Berger, Justin Lilien, Staff Attorney, Brooklyn, NY, for Defendant.

Memorandum and Order

GARAUFIS, District Judge.

Petitioner Eliot Sash ("Sash") is nearing the end of a 27 month sentence he received after pleading guilty to one count of identification document fraud and one count of possessing 15 or more counterfeit or unauthorized access devices. He has filed this petition pursuant to 28 U.S.C. § 2241, claiming that he should have been released from federal detention on November 5, 2004 because he has accrued 121 days of good-time credit pursuant to 18 U.S.C. § 3624(b). The Bureau of Prisons ("BOP") does not dispute that Sash has earned the maximum amount of goodtime credit available to prisoners incarcerated for the term served by Sash. However, the BOP, applying a construction of the good-time credit statute promulgated under 28 C.F.R. § 523.20, contends that Sash is due only 105 days of good-time credit, and therefore plans to release him on November 22, 2004.¹

Sash argues that the BOP's method of calculating good-time credit runs counter to the plain language of 18 U.S.C § 3624(b), and is therefore unlawful. He argues in the alternative that even if the statutory language is ambiguous, deference to the BOP's interpretation is unwarranted because both legislative history and the rules of statutory interpretation dictate that the dispute should be resolved in his favor. Finally, Sash argues that because he has presented a substantial question to the court, and because habeas relief would be rendered ineffective if granted after November 22, he should be released on bail pending this court's decision on the merits.

Not surprisingly, the BOP agrees that the language of 18 U.S.C. § 3624(b) is unambiguous, but asserts that its own interpretation accords with the text of the statute. The BOP then argues that even if the court finds the statutory language to be ambiguous, its interpretation should be afforded substantial deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Because its interpretation of the statute is reasonable, the BOP claims, that interpretation should be afforded deference by this court, and should be upheld. Finally, the BOP argues that because the relief sought by Sash is exactly that sought by almost every habeas petitioner, no extraordinary circumstances exist in this case that would warrant Sash's release on bail pending a decision of this court on the merits.

This dispute was referred to Magistrate Judge Lois Bloom for a Report and Recommendation ("Report"). After hearing oral argument in this case, Judge Bloom issued her Report on October 27, 2004, recommending that this court deny Sash's application for a writ of habeas corpus and his motion for bail pending a decision on the merits. Sash filed a timely statement of objections to "all aspects" of the Report. (Pet.Ob.1). This court has therefore conducted a de novo review of Judge Bloom's Report in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). This court adopts the Report in full, finding (A) that the language of 18 U.S.C. § 3624(b) is ambiguous; (B) that the rule of lenity should not be applied in this case to resolve that ambiguity; (C) that substantial deference to the BOP's interpretation of the statute is appropriate under Chevron; (D) that the BOP's interpretation of the statute is reasonable; and (E) that the BOP's interpretation does not conflict with the caselaw of this Circuit. Finally, Sash's motion for bail is denied as moot.

Discussion

A. Statutory Language

The statutory provision at issue in the instant case provides, in pertinent part, that:

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 that, during that year, the prisoner has displayed exemplary compliance with the 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 ... Subject to paragraph (2), credit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

18 U.S.C. § 3624(b)(1)

According to the BOP, this statute means that "an inmate earns 54 days credit toward service of sentence (good time credit) for each year served. This amount is prorated when the time served by the inmate for the sentence during the year is less than a full year." 28 C.F.R. § 523.20 (emphasis added). Thus, under the BOP interpretation, prisoners accrue 54 days of good time credit for each 365 days of "exemplary compliance with institutional regulations."

Sash contends that this interpretation robs prisoners of approximately seven days per year of good-time credit because "§ 3624... awards the credit based on the `sentence, beyond the time served' or the `term of imprisonment,' that is the total sentence imposed." (Pet.Br.6) (emphasis added). According to Sash, the unambiguous meaning of the statute is that prisoners should earn 54 days of credit for every 311 days of good behavior, with the result that time actually served plus good time credit equals one year of the imposed sentence. (Pet.Br.27-28).

Sash's basic textual argument runs as follows: (1) The canons of statutory construction and ordinary logic hold that a term used multiple times in the same sentence should be read as having the same meaning each time; (2) the first time the phrase "term of imprisonment" appears in the statute, it means the sentence imposed by the presiding judge; (3) the second time the phrase, "term of imprisonment" appears, it again means `sentence imposed'; (4) therefore, when the phrase "term of imprisonment" is employed a third time to describe the period of time to which the good time credits are applied, it should again be read to mean `sentence imposed,' and not the time served by the prisoner; and (5) this is particularly true when Congress has employed "term of imprisonment" dozens of times within an omnibus bill as shorthand for "sentence imposed." (Pet. Br. 18-22 and n. 13). Sash also contends that the clause indicating that prisoners can earn "credit toward the service of the prisoner's sentence, beyond the time served" can only mean that the good time credit calculation is based on the sentence and not actual time in prison. (Pet.Br.16-17). Finally, Sash claims that controlling precedent in this Circuit supports his reading of the statute, citing United States v. Tocco, 135 F.3d 116, 131-32 (2d Cir.1998) aff'g United States v. Ferranti, 928 F.Supp. 206, 215-216 (E.D.N.Y.1996).

The BOP counters that "the statute requires the BOP to make a `determination ... that, during that year, the prisoner has displayed exemplary compliance with the institutional regulations.'" (Resp.Br.13). The BOP concludes from this that the application of good time credit should be retrospective, accruing only as time is actually served. Id. The BOP further argues that the relevant phrase is not simply "term of imprisonment" but rather "serving a term of imprisonment," which the BOP argues "suggests that it is the time that is actually served, rather than the length of the sentence, that is key." Id. Finally, the BOP notes that the statute provides that "credit for the last year or portion of a year of the term of imprisonment shall be prorated," and that Sash's system would "essentially eliminate prorating." Id at 14-15.

In the face of these contrary indicators as to Congress' intent in enacting § 3624, Judge Bloom found that the language of the statute, and in particular the phrase "term of imprisonment," is ambiguous. I agree. As a number of courts have concluded, accepting Sash's reading of the statute produces the anomalous result that a prisoner is awarded credit toward the service of his sentence as a reward for good behavior during time that he will never be required to serve. See, e.g., Pasciuti v. Drew, 2004 WL 1247813, *3, *5 (N.D.N.Y. June 2, 2004); Graves v. Bledsoe, 334 F.Supp.2d 906, 908 (W.D.Va.2004). That outcome would be more palatable if it did not appear to contravene Congress' intent that good time credits be awarded "at the end of each year of the prisoner's term of imprisonment" and following a BOP determination that the prisoner's behavior justifies the grant of good time credits. 18 U.S.C. § 3624(b)(1).

On the other hand, neither the BOP nor any of the courts that have decided this issue has been able to explain what the phrase "beyond the time served" means if it does not have the meaning that Sash imputes to it.² Nor is it clear from the plain language of the statute that "term of imprisonment" could not mean "sentence imposed," as Sash urges, rather than "time served," as the BOP contends. As such, this court concludes that the language of 18 U.S.C. § 3624(b) is ambiguous with respect to the maximum rate at which good time credits may accrue to federal prisoners.

This conclusion raises the question of where the court should next turn in attempting to resolve this textual dispute. The BOP argues that once the court has found that the statutory language is ambiguous, any dispute as to its meaning must be...