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


4-22-2005

Gallo v. Holt
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1386




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Recommended Citation
"Gallo v. Holt" (2005). 2005 Decisions. Paper 1321.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1321


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APS-185                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-1386
                                   ________________

                                    MARIO GALLO,
                                               Appellant

                                             v.

                     RONALD R. HOLT, Warden of FCI Schuylkill

                     _______________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civ. No. 05-cv-00009)
                      District Judge: Honorable William J. Nealon
                    _______________________________________

                     Submitted For Possible Summary Action
                   Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  March 31, 2005
        Before: SLOVITER, NYGAARD AND FUENTES, CIRCUIT JUDGES

                                 (Filed: April 22, 2005)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Mario Gallo appeals from the District Court’s order denying his habeas corpus

petition filed pursuant to 28 U.S.C. § 2241. In his habeas petition, Gallo challenges the

calculation of his good conduct time (“GCT”) by the Bureau of Prisons (“BOP”).
Because we conclude that the District Court’s decision is correct in light of our recent

opinion in O’Donald v. Johns, __F.3d__, No. 04-2990, 2005 WL 647669 (3d Cir. Mar.

22, 2005), we will summarily affirm.

       Gallo is currently incarcerated at the Federal Correctional Institution-Schuylkill in

Minersville, Pennsylvania, serving a federal sentence of 180 months imposed in 1997.

According to the BOP, Gallo is eligible under the applicable statute, 18 U.S.C. § 3624(b),

to earn up to 683 days of GCT. The BOP’s calculation of GCT is based on the time Gallo

will actually serve in prison, not on the entire 180-month sentence imposed. The BOP

projects Gallo’s release date as October 16, 2009.

       After administratively challenging the BOP’s calculation of his GCT, Gallo filed a

§ 2241 habeas corpus petition in the District Court. In his habeas petition, Gallo argues

that the BOP’s calculation of his GCT deprives him of the amount to which he is entitled

by statute. Gallo asserts that § 3624(b) allows him to earn up to 54 days per year based

on the term of sentence imposed, not 54 days per year based on time actually served as

the BOP’s calculation provides. Relying on the opinions of several other courts, the

District Court rejected Gallo’s position and denied his habeas petition. Gallo appeals.1

       We will affirm the District Court’s order. Since Gallo filed his notice of appeal,

we resolved the issue in O’Donald v. Johns, __F.3d__, No. 04-2990, 2005 WL 647669



   1
    We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We exercise
plenary review over the District Court’s legal conclusions and apply a clearly erroneous
standard to its findings of fact. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002).

                                             2
(3d Cir. Mar. 22, 2005). In O’Donald, we held that the meaning of § 3624(b) is

ambiguous and thus deferred to the BOP’s reasonable interpretation of the statute. See

O’Donald, 2005 WL 647669 at *2. Gallo’s challenge, identical to the one raised and

rejected in O’Donald, is unavailing.

      In short, we conclude that Gallo’s appeal is controlled by O’Donald, which

constitutes subsequent precedent warranting summary action. See Third Circuit L.A.R.

27.4, I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s order

denying Gallo’s § 2241 petition.




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