                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-17-2005

Panek v. Apker
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1200




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Recommended Citation
"Panek v. Apker" (2005). 2005 Decisions. Paper 215.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/215


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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       NO. 05-1200
                                    ________________

                                 ALEXANDER PANEK,
                                                                Appellant

                                             v.

       CRAIG APKER, Warden, Allenwood Low Security Correctional Institution
                 ____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                               (D.C. Civ. No. 04-cv-02107)
                       District Judge: Honorable Sylvia H. Rambo
                     _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 2, 2005

          Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                                (Filed: November 17, 2005)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Alexander Panek, presently incarcerated at a federal facility in Allenwood,

Pennsylvania, appeals the district court’s denial of a habeas petition that he brought

pursuant to 28 U.S.C. § 2241. We will affirm.
       In 2000, Panek was sentenced by the United States District Court for the Northern

District of New York to 151 months in prison. Pursuant to 18 U.S.C. § 3624(b), Panek is

eligible to earn good conduct time. That statute provides, in pertinent part:

              [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 institutional disciplinary regulations.

§ 3624(b)(1). Based on its interpretation of this text, the Bureau of Prisons (BOP)

calculated that Panek would be able to earn up to 592 days of good conduct time. BOP’s

Response, 2. In Panek’s view, however, he should be able to earn up to 680 days.

Habeas Petition, 4.

       BOP’s calculation of a prisoner’s good conduct time is based on the time actually

served in prison. Its calculation accounts for the fact that the prisoner’s sentence is

incrementally shortened as good conduct time is awarded each year. See O’Donald v.

Johns, 402 F.3d 172, 173 (3d Cir. 2005), rehearing en banc denied (order entered

October 4, 2005). Appealing to what he views as the plain language of the statute, Panek

argues, however, that he is entitled to earn up to 54 days per year based on the sentence

imposed by the judge, not a lesser quantity based on time actually served. See

Appellant’s Brief, 2-10.




                                              2
       As he is aware, see Reply Brief, passim, Panek’s claim is identical to that raised

and rejected by a panel of this court in O’Donald. There, we held that § 3624(b) is

ambiguous and deferred to BOP’s interpretation of the statute. O’Donald, 402 F.3d at

174. Panek asks us to disregard O’Donald’s holding, but we are not free to do so. See

I.O.P. 9.1 (“the holding of a panel in a precedential opinion is binding on subsequent

panels”); Auguste v. Ridge, 395 F.3d 123, 149 (3d Cir. 2005). We note, too, that the

court recently denied rehearing en banc in O’Donald. Accordingly, for the reasons set

out in O’Donald, we must conclude that the district court properly rejected Panek’s

challenge to BOP’s calculation of his good conduct time.

       For the reasons given, we will affirm the judgment of the district court.




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