Kikumura v. Hood , 467 F.3d 1257 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 31, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
Y U K IK U MU R A ,
Petitioner-A ppellant,
v. No. 06-1110
ROBERT A. HOOD, W arden of the
USP ADX; C. CHESTER, Associate
W arden of the U SP A D X ,
Respondents-Appellees.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF COLORADO
(D.C. No. 05-cv-594-LT B-CBS)
Submitted on the briefs: *
Yu Kikumura, Pro Se.
W illiam J. Leone, United States Attorney, John M . Hutchins, Assistant United
States Attorney, Denver, Colorado, for Respondents-Appellees.
Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
PE R C U RIA M .
Petitioner Yu Kikumura, a federal prisoner proceeding pro se, appeals from
the district court’s judgment denying his application for a writ of habeas corpus.
W e have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) and affirm.
M r. Kikumura, a former member of the now-defunct terrorist group called
the Japanese Red Army, was convicted on November 28, 1988, “of numerous
counts of interstate transportation of explosive devices and passport offenses” and
was sentenced to a 262-month sentence. United States v. Kikum ura, 947 F.2d 72,
73-75 (3d Cir. 1991). He is presently serving that sentence at the United States
Penitentiary, Administrative M aximum, in Florence, Colorado. He filed an
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging
the method by which the Bureau of Prisons (BOP) calculates and awards good
conduct time (GCT). Under the BOP’s m ethod, Kikumura’s release date w ould
be April 18, 2007. Employing the method Kikumura advocates, he would be
released from prison on November 17, 2006, as he is a model prisoner and has
received the maximum amount of GCT that he could earn. Adopting the findings
of fact and recommendation of the magistrate judge over M r. Kikumura’s
objections, the district court denied the application and dismissed the action. The
court also denied a number of M r. K ikumura’s requests for post-judgment relief.
This appeal followed.
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“In evaluating the district court’s denial of a habeas corpus petition, we
review legal conclusions de novo and factual findings for clear error.” Beem v.
M cKune, 317 F.3d 1175, 1179 (10th Cir. 2003) (en banc). Because M r. Kikumura
appears pro se, we review his pleadings and other papers liberally and hold them
to a less stringent standard than those drafted by attorneys. See Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 &
n.3 (10th Cir. 1991).
Although M r. Kikumura presents seven issues for review, they can be
reduced to one: whether the BOP’s method of calculating GCT is contrary to the
governing statute, 18 U.S.C. § 3624(b)(1). Section 3624(b)(1) provides that for
exemplary conduct, a prisoner “may receive credit toward the service of the
prisoner’s sentence, beyond time served, of up to 54 days at the end of each year
of the prisoner’s term of imprisonment.” Kikumura argues that “term of
imprisonment” in § 3624(b)(1) means the sentence imposed and that he is
therefore entitled to 54 days of GCT for each year of the sentence imposed,
assuming exemplary conduct. The BOP, however, interprets “term of
imprisonment” to mean time served and awards “54 days credit toward service of
sentence (good conduct time credit) for each year served.” 28 C.F.R. § 523.20(a).
In Kikumura’s estimation, the BOP’s interpretation is contrary to the statute,
congressional intent, and legislative history. He also argues that the rule of lenity
should be applied in his favor.
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After briefing was completed in the present appeal, this court issued its
opinion in Wright v. Federal Bureau of Prisons, 451 F.3d 1231 (10th Cir. 2006),
reh’g en banc denied (10th Cir. Sept. 6, 2006) (No. 05-1383). In Wright, this
circuit joined many other circuits in holding that § 3624(b)(1) is ambiguous as to
the meaning of “term of imprisonment,” id. at 1235, but that the BOP’s “time
served” interpretation of the statute is “clearly a reasonable one,” id. at 1236.
The court considered congressional intent and legislative history, id. at 1234-35,
and rejected application of the rule of lenity, id. at 1236. Thus, Wright directly
forecloses all of Kikumura’s arguments except his contention that the method by
which the BOP calculates GCT for a partial or final year violates the statute.
Although the partial-year method was not directly at issue in Wright,
we find Wright to be controlling. The BOP’s method for calculating GCT for a
partial year is based on the following statutory language: “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). The relevant
regulation provides that GCT “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(a).
Program Statement 5880.28 of the BOP’s Sentence Computation M anual provides
a formula for making the pro rata determination by which the BOP awards .148
days of GCT for each day actually served during the last or partial year (the
“Eight-Step” formula). The .148 figure is derived by dividing the maximum
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amount of GCT a prisoner exhibiting exemplary conduct could earn in a year if
the prisoner served a full year, 54 days, by 365 days per year, which can also be
expressed as the fraction 54/365.
Kikumura’s argument on this issue is difficult to follow, but his contention
appears to be that the Eight Step formula is a “‘sentence imposed’ proration with
unlawfully degraded rate” of 54/419 (or .129), Aplt. Opening Br. at 53, which he
appears to derive from the fact that a prisoner sentenced to 419 days (or one who
has 419 days remaining on a longer sentence, counting from the date on which the
BOP makes the prisoner’s penultimate award of GCT) and who exhibits
exemplary conduct would serve 365 days, thereby earning the maximum 54 days
of GC T and release after the 365th day (365 days served + 54 days GC T =
419-day sentence). Kikumura apparently views this as earning 54 days of GCT
on a sentence of 419 days, or .129 days of G CT per day imposed (or remaining),
which is less than the ordinary .148 days of GCT awarded for each day served.
Wright does not address partial-year calculations specifically, but its
holding that “time served” is a permissible basis for awarding GCT under the
statute undermines Kikumura’s argument. The pro rata determination is not based
on the sentence imposed (or remaining) and the rate is not “degraded” because a
prisoner who actually serves 365 days of a 419-day sentence receives .148 days of
GCT for each of those days (i.e., “time served”), or 54 days of GCT (365 x .148 =
54), to make up the rest of the 419 days. The same holds true for a prisoner
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during the last year or portion of a year of a sentence: he or she receives .148
days GCT for each day served, which, when added to the number of days served,
equals the time remaining. See generally White v. Scibana, 390 F.3d 997, 1000
(7th Cir. 2004) (discussing partial-year calculation), cert. denied sub nom. White
v. Hobart, 125 S. Ct. 2921, 2922 (2005); Pacheco-Camacho v. Hood, 272 F.3d
1266, 1267-68 (9th Cir. 2001) (same). This interpretation accords with Wright.
Kikumura also contends that the Eight-Step formula is so complicated that
it is arbitrary, capricious, and contrary to § 3624(b)(1). W hile we might agree
with him that the formula is complicated, he cites to no case law, and we have
found none, indicating that complexity is a factor in determining whether an
agency regulation is a permissible interpretation of a statute. In any event,
Program Statement 5880.28 provides a chart from which a prisoner can look up
how many days remain on his sentence. From there, the chart shows the proper
combination of days served and pro-rated GCT that, when added together, equal
the days remaining, assuming exemplary conduct. The result is always .148 days
of GCT for each day actually served, taking into account the BOP’s method of
rounding the fractions. Because the result is readily available from the chart, the
calculation is not “deceptive, fraudulent, keeping the prisoners, courts and public
from deciphering its unlawful substance,” as Kikumura argues, Aplt. Opening Br.
at 52. It is based on time served, which is proper under Wright.
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Kikumura also makes an argument involving the BOP’s rule precluding an
award of GCT for any days spent serving time for which GCT has been
disallowed during the final or partial year, which he designates as the “1-52 Rule”
because it appears on page 1-52 of Program Statement 5880.28. See Aplt.
Opening Br. at 20-24. But even affording the leeway to which M r. Kikumura is
entitled as a pro se litigant, we are unable to discern anything in this nearly
incomprehensible argument that calls Wright or the BOP’s final or partial-year
GCT calculation into question. Furthermore, M r. Kikumura has alleged that he is
a model prisoner and has never had any GCT disallowed. Therefore, his
argument, whatever its point may be, appears premature.
The judgment of the district court is AFFIRM ED. M r. Kikumura’s motion
for a preliminary injunction is denied.
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