                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   October 12, 2010
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

 EUGENE H. MATHISON,

              Petitioner-Appellant,                     No. 10-1208
                                              (D.C. No. 1:09-CV-02549-WYD)
 v.                                                     (D. of Colo.)
 BLAKE R. DAVIS, Warden.

              Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Eugene Mathison, a pro se litigant, 1 appeals the denial of his application for

a writ of habeas corpus pursuant to 28 U.S.C. § 2241. He challenges the Bureau

of Prisons’ (BOP) determination that he is ineligible to participate in the Elderly




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Mathison is proceeding pro se, we construe his filings liberally.
See Van Deelan v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
Offender Home Detention Pilot Program under the Second Chance Act (SCA).

Having jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we AFFIRM.

                                  I. Background

       In 1997, Mathison was sentenced to 246 months in prison for conspiracy,

mail fraud, wire fraud, and money laundering. In 2009, Mathison sought

admission to the Elderly Offender Home Detention Pilot Program created by the

SCA.

       The SCA authorizes the Attorney General and the BOP to conduct a pilot

program “to remov[e] eligible elderly offenders from a Bureau of Prisons facility

and plac[e] such offenders on home detention until the expiration of the prison

term to which the offender was sentenced.” 42 U.S.C. § 17541(g)(1)(A). In

pertinent part the statute provides that an eligible offender is “an offender not less

than 65 years of age” who “has served the greater of 10 years or 75 percent of the

term of imprisonment to which the offender was sentenced.” 42 U.S.C.

§ 17541(g)(5)(A)(ii). The BOP interprets the phrase “term of imprisonment to

which the offender was sentenced” to mean “the term of imprisonment imposed

by the sentencing court(s), whether stated in days, months, or years.” BOP

Operations Memorandum 003-2009 (5392) (Feb. 5, 2009).

       The BOP denied Mathison’s application for admission to the Pilot Program

after determining that Mathison had not yet served 75% of the 246 months to

which he was sentenced by the district court. Mathison contends the BOP has

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misinterpreted the SCA, and that the phrase “term of imprisonment” refers to the

net term served after deducting good time credits awarded for good behavior.

Under Mathison’s calculation, he would have been eligible for participation in the

Pilot Program on February 23, 2010.

      Mathison disputed the BOP’s interpretation of the SCA in a habeas

application to the district court, claiming the statutory language regarding

eligibility is ambiguous. He further argued the rule of lenity, the Supreme

Court’s interpretation of similar statutes, and statutory history suggest the

language should be read in his favor. The district court denied his application. In

his appeal before this court Mathison reasserts his claims and submits a renewed

application to proceed in forma pauperis.

                                    II. Analysis

      In a § 2241 habeas proceeding, this court reviews legal questions de novo.

United States v. Eccleston, 521 F.3d 1249, 1253 (10th Cir. 2008).

       Because this case turns on the BOP’s construction of a statute, our analysis

is guided by Chevron U.S.A. v. Natural Res. Def. Council, 467 U.S. 837 (1984).

Wright v. Fed. Bureau of Prisons, 451 F.3d 1231, 1233 (10th Cir. 2006). Under

Chevron, we must first determine “whether Congress has directly spoken to the

precise question at issue.” 467 U.S. at 842. “If congressional intent is clear from

the statutory language, the inquiry is over, and both the court and the agency

‘must give effect to the unambiguously expressed intent of Congress.’” Lee v.

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Mukasey, 527 F.3d 1103, 1106 (10th Cir. 2008) (quoting Chevron, 467 U.S. at

842–43). If, however, the statutory language is ambiguous, we will consider the

agency’s interpretation. Where, as here, the agency did not interpret the statute

pursuant to a formal rulemaking or adjudicative process, we will defer to the

agency’s view if it is “well-reasoned and has power to persuade.” Fristoe v.

Thompson, 144 F.3d 627, 631 (10th Cir. 1998) (internal quotations omitted).

       Since the district court issued its opinion, we have held that the plain

language of the phrase “term of imprisonment to which the offender was

sentenced” in § 17541 unambiguously refers to the term imposed by the

sentencing court, without consideration of later diminution by good time credit.

Izzo v. Wiley, No. 10-1195, 2010 WL 3758717, at *2 (10th Cir. Sept. 28, 2010)

(“With th[e] modification clause, the “term of imprisonment” unmistakably refers

to the term imposed by the sentencing court.”) Because the statutory language is

clear, we need not proceed to the second prong of the Chevron analysis.

                                      III. Conclusion

       Accordingly, we AFFIRM the district court’s denial of the habeas

application. We also GRANT Mathison’s application to proceed in forma

pauperis.

                                                 ENTERED FOR THE COURT,

                                                 Timothy M. Tymkovich
                                                 Circuit Judge


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