United States District Court, D. Kansas
HENRY C. HALL, Petitioner,
COLONEL SIOBAN LEDWITH, Commandant, U.S.D.B., Respondent.
MEMORANDUM AND ORDER
RICHARD D. ROGERS, District Judge.
Petitioner is a military prisoner who was confined at the United States Penitentiary, Fort Leavenworth, Kansas, when he filed this pro se petition for writ of habeas corpus, 28 U.S.C. § 2241. Mr. Hall does not challenge his military convictions or sentence. Instead, he challenges the computation of his remaining sentence following revocation of his military parole without credit for "work abatement time" he had earned prior to his release. Respondent filed an Answer and Return. Petitioner thereafter filed a Motion for Order for release, to which respondent filed a Response. Having considered these pleadings together with all materials in the file, the court finds that petitioner fails to show that he exhausted all remedies available in the military courts or that none was available and that, in any event, he fails to allege a violation of federal constitutional or statutory law so as to be entitled to relief under § 2241.
Mr. Hall was a member of the United States Army when he was convicted in September 2005 by general court-martial of conspiracy to commit assault, violation of a lawful order, false official statement, maiming and assault. His convictions and sentence to confinement were affirmed by the Army Court of Criminal Appeals and the Court of Appeals for the Armed Services. Pursuant to a plea agreement, his confinement was limited to 10 years. Petitioner served several years of his sentence at the USDB during which he earned Good Conduct Time (GCT) as well as work-related abatements. The Army Clemency and Parole Board (ACPB) approved him for parole and he was conditionally released in July 2010. In May 2013, the ACPB revoked petitioner's parole and he was returned to confinement. He does not challenge the revocation of his parole.
Upon his return to the USDB, petitioner's sentence was recalculated, and he received an updated computation sheet containing his new sentence and minimum release date. He was granted credit for over 22 months of "street time" from the date of his parole release. However, "all abatement credits earned prior to his release on parole" were considered forfeited. In September 2013, by way of "Inmate Request Slip" (hereinafter "IR") directed to the USDB Commandant, Mr. Hall requested restoration of his forfeited "Earned Time/Work Abatement" and claimed that restoration of this credit would entitle him to immediate release. Mr. Escobedo responded, that "[p]risoners who accept parole shall waive all good conduct time (also referred to as earned time and special earned time) earned up to the date of release on parole." Docs. 1-1 at 1 and 7-2 at 1.
Petitioner does not challenge the forfeiture of his GCT. His only challenge is to the forfeiture of his non-GCT abatement credits, referred to by him as "earned time abatement secured through work performance" (hereinafter "WAT"). Petition (Doc. 1) at 4. He asserts that forfeiture of his WAT was improper and that his due process rights were violated as a result. Petitioner bases his claim that his WAT was improperly forfeited on two arguments that are often confused and therefore confusing. First, he contends that the parole agreement was violated because therein he agreed to waive his GCT and his "Extra Good Conduct Time" (EGCT) but not his ET, and that this agreement was binding upon the ACPB as well as him. Secondly, he argues that "all the regulatory guidance" defined GCT "as a deduction of days from a prisoner's release date for good conduct, " while "earned time" (ET) was defined as "the abatement earned by prisoners through work performance" and as a reduction in his sentence, which is not subject to forfeiture. In support of the latter argument, petitioner alleges that "these guidelines" neither defined WAT nor made it subject to forfeiture.
Petitioner does not specify in his petition what relief he seeks from this court. In his IRs he sought restoration of all the WAT earned by him prior to his release on parole and his immediate release.
Habeas corpus relief is available under 28 U.S.C. § 2241(c)(3) to prisoners who are in custody "in violation of the Constitution or laws or treaties of the Unites States." "Good time credit for satisfactory behavior while in (military) prison is not a constitutional, statutory or inherent right." U.S. v. Rivera-Rivera, 19 M.J. 971, 972 (A.C.M.R. 1985)(citing Hewitt v. Helms, 459 U.S. 460 (1983)).
l. Failure to Exhaust Military Court Remedies
The Tenth Circuit discussed the general principles of exhaustion applicable to claims by military prisoners in Roberts v. Callahan, 321 F.3d 994, 995 (10th ...