United States District Court, E.D. Texas, Texarkana Division
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
Shaw, an inmate confined within the Bureau of Prisons,
proceeding pro se, filed the above-styled petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
Docket No. 1. The Court referred this matter to the Honorable
Caroline M. Craven, United States Magistrate Judge, for
consideration pursuant to 28 U.S.C. § 636(b)(1) and (3).
The Magistrate Judge has submitted a Report and
Recommendation of United States Magistrate Judge
(“Report”) recommending the petition for writ of
habeas corpus be denied. Docket No. 11 at 5. Petitioner filed
objections to the Report. Docket No. 13. Respondent filed a
response. Docket No. 15. The Court reviews the objected-to
portions of the Report de novo. Fed.R.Civ.P.
was previously convicted of four criminal offenses. For one
conviction he was sentenced to life imprisonment. For the
other three convictions he was sentenced to an aggregate
consecutive term of imprisonment of 21 years.
asserts three grounds for review. First, relying on 18 U.S.C.
§ 4206(d), he contends the United States Parole
Commission incorrectly calculated his mandatory release date.
§ 4206(d) provides, in part, that, “[a]ny prisoner
. . . shall be released on parole after serving two-thirds of
each consecutive term or terms, or after serving thirty years
of each consecutive term or terms of more than forty-five
years including any life term, whichever is earlier.”
Petitioner states § 4206(d) should be interpreted as
providing for release on parole when he has served: (a)
two-thirds of each consecutive term or (b) 30 years,
whichever is earlier. The Magistrate Judge disagreed,
concluding an inmate was not eligible for release until
serving two-thirds of each component of his sentence. Docket
No. 11 at 2. A life sentence is considered to be 45 years.
The Magistrate Judge concluded Petitioner would not be
eligible for mandatory release until he had served 44 years,
30 years as two-thirds of the life term component of his
sentence and 14 years as the term of years component of his
sentence. Id. at 3.
second ground for review, Petitioner contends the 1, 808 days
of Industrial Good Conduct Time he has earned during his
incarceration should be considered to calculate the date on
which he is eligible for mandatory release. The Magistrate
Judge concluded that as Petitioner's sentence included a
term of life imprisonment, his Industrial Good Conduct Time
Credits could not be considered in calculating his mandatory
release date. Docket No. 11 at 4.
time Petitioner committed his offenses, he was to be
considered for release on parole every 10 years. The Parole
Commission subsequently amended the applicable regulations to
provide inmates were only entitled to reconsideration every
15 years. In his third ground for review, Petitioner contends
that by extending the time he has to wait to be reconsidered
for release on parole, the Parole Commission violated his
rights under the Ex Post Facto Clause. The
Magistrate Judge concluded this ground for review was without
merit because a change in law making parole hearings less
frequent does not violate the Ex Post Facto Clause.
Docket No. 11 at 4-5.
objections, Petitioner only challenges the Magistrate
Judge's conclusion regarding his first ground for review.
As stated above, Petitioner contends § 4206(d) provides
he is eligible for release on parole when he has served: (a)
two-thirds of each of his consecutive terms of imprisonment
or (b) 30 years, whichever is earlier. The Magistrate Judge
concluded Petitioner was not eligible for release until he
served two-thirds of each consecutive component of his
sentence. In his objections, Petitioner contends that the
inclusion of the disjunction “or” in §
4206(d) renders the statute divisible. He asserts the
“or” in § 4206(d) divides the statutes into
two distinct clauses, with the first clause making an inmate
eligible for release after two-thirds of each consecutive
term and the second clause making an inmate eligible for
release after serving 30 years of each consecutive term of
more than 45 years, including any life term, whichever is
earlier. Petitioner states that as he was sentenced to a term
of life imprisonment plus three consecutive term of years
sentences, his situation is governed by the second clause. He
contends that under this clause, he became eligible for
mandatory release after serving 30 years because he has only
one term of imprisonment longer than 45 years.
argues that § 4206(d)'s plain language states that a
prisoner must serve two-third of “each
consecutive term or terms” prior to being eligible for
a mandatory parole hearing. Docket No. 15 at 3 (emphasis in
original). According to Respondent, the second clause
“or after serving thirty years of each consecutive term
or terms of more than forty-five years including any life
term, which is earlier, ” modifies the phrase
“consecutive term or terms” in the preceding
clause. Id. Respondent argues that Petitioner's
interpretation of the statute comports neither with reason
nor justice because under this interpretation, no matter how
many additional terms an inmate's sentence includes, if
one of those sentences is a life sentence, the most that
inmate would be required to serve would be thirty years.
Id. at 4.
further argues that Petitioner's reliance on Bowers
v. Keller, 652 F.3d 1277 (11th Cir. 2011), is unavailing
because Bowers is factually distinguishable from
this case, and because the Eleventh Circuit did not have the
opportunity to address the issue presently before this Court.
Docket No. 15 at 4. In Bowers, the Petitioner only
had one life sentence, and while the Eleventh Circuit did
address § 4206, it did so in the context of the history
of the Parole Commission and its responsibilities.
the Magistrate Judge, the Court agrees with the
interpretation of § 4206(d) relied on by the United
States Court of Appeals for the Third Circuit in Hackley
v. Bledsoe, 350 Fed.Appx. 599 (3rd Cir. 2009). The
petitioner in Hackley was sentenced to a term of
life imprisonment and three consecutive terms of 10 years of
imprisonment. He, like the current Petitioner, asserted
§ 4206(d) required his release after serving 30 years.
The Third Circuit disagreed, stating:
properly read, the statute requires service of two-thirds of
“each consecutive term or terms, ” that
is, service of 30 years on the life sentence (“after
serving thirty years of each consecutive term or terms of
more than forty-five years including any life term”),
to which is added service of two-thirds of the remaining
aggregate sentence, or 20 years. The statute requires Hackley
to serve 50 years.
Id. at 602 (emphasis in original).
as Respondent points out, the House Conference Report on
§ 4206(d) provides in relevant part that:
Lastly, this section provides more liberal criteria for
release on parole for prisoners with long sentences after
they have completed two-thirds of any sentence, or thirty
years, whichever occurs first. In calculating two-thirds of a
term, all sentences imposed consecutively should be
considered separately and the time on each sentence added
Docket No. 15 at 5-6 (citing H.R. Conf. Rep. 94-838, 99,
as reprinted in 1976 U.S.C.C.A.N. 351, 360
(emphasis added). While the legislative history
demonstrates that Congress intended the section to provide
more liberal criteria for release on parole for prisoners
with longer sentences, each consecutive sentence (including
life sentences) should be considered separately, and then
added together to calculate the eligibility date.
Court agrees with the Magistrate Judge's reasoning in
the Report. To hold otherwise would make Petitioner's
consecutive term-of-year sentences irrelevant to the
calculation of his mandatory release date. Moreover, the
legislative history of § 4206(d) provides that
“all sentences imposed consecutively should be
considered separately and the time on each sentences added
together.” Therefore, as the Magistrate Judge
correctly found, Petitioner must serve two-thirds of the
21-year sentence and two-thirds of the life sentence, for a
total of 44 years, before becoming eligible for mandatory
having reviewed Petitioner's objections de