CHARLES R. SIMPSON, III, Senior District Judge.
Stanley Fryar filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241, ECF No. 1. Warden Aaron Smith answered, ECF No. 12. Fryar did not reply. The magistrate judge made findings of fact, conclusions of law, and a recommendation that Fryar's petition be dismissed with prejudice and that Fryar be denied a certificate of appealability. R. & R., ECF No. 13. Fryar makes two objections to the magistrate judge's analysis: (1) he argues that the magistrate judge misconstrued his petition as a 28 U.S.C. § 2254 petition, rather than one under 28 U.S.C. § 2241; and (2) he objects to the magistrate judge's interpretation and use of Carpenter v. Department of Corrections, No. 3:11-42-DCR, 2012 WL 2021718 (E.D. Ky. June 5, 2012). Obj. R. & R. 1-3, ECF No. 14.
For the reasons below, the Court will adopt the magistrate judge's report and recommendation in full. The Court will deny Fryar's petition for a writ of habeas corpus. The Court will deny Fryar a certificate of appealability.
Findings of Fact
In May of 2000, Fryar pled guilty to various charges of sodomy and sexual abuse in Boone County, Kentucky Circuit Court, and he was sentenced to a 20-year term of imprisonment. R. & R. 1, ECF No. 13. From January 2001 until early September 2010, Fryar was a resident at the Eastern Kentucky Correctional Complex (EKCC), where he claims he was a "model prisoner" who lived in the honor dorm for approximately 4 ½ years. Id. at 2. In 2010, Fryar was transferred to the Kentucky State Reformatory (KSR). Id.
On July 16, 2013, following his transfer, Fryar wrote a letter to Warden Gary Beckstrom requesting meritorious good time credits for his time spent at EKCC. Id. On July 19, 2013, Warden Beckstrom wrote a memorandum to Fryar, explaining that prison policy prohibited him from re-evaluating the decision of the prior warden at EKCC concerning the award or denial of meritorious good time. Id.
Fryar sought administrative appellate review of Warden Beckstrom's decision through the Kentucky Department of Corrections (KDOC) Office of Offender Information Services (OIS) as required by Corrections Policies and Procedures (CPP) 17.4. Id. On December 11, 2013, OIS Branch Manager Ashley Sullivan wrote a letter informing Fryar that a change in Kentucky Revised Statutes § 454.415 required Fryar to first contact the OIS staff at his institution before taking the appeal to the Central Office. Id.
On December 19, 2013, Fryar wrote to the OIS staff at his institution to request meritorious good time for his time spent at EKCC. Id. at 3. On December 26, 2013, OIS Specialist William Mustage wrote:
Id. On January 2, 2014, Fryar against sought administrative review of this decision under CPP 17.4. Id. On January 27, 2014, Sullivan wrote back, informing Fryar that she had reviewed Mustage's response and concurred with his findings. Id. She advised Fryar of his right to appeal her decision to the sentencing court within thirty days of exhausting his administrative remedies under Kentucky Revised Statutes § 532.120(8). Id.
On March 11, 2014, Fryar moved under Kentucky Revised Statutes § 532.120(8) for an order directing application of meritorious good time credits in the Boone Circuit Court. Id. at 4. In his motion, Fryar alleged that he never received these credits due to clerical error on the part of EKCC staff. Id. On April 9, 2014, the Boone Circuit Court denied Fryar's motion. Id. The judge wrote, "KRS 197.045(1)(b)(2) states that the Commissioner of the Department of Corrections
On appeal, Fryar argued that while "prisoners do not have a right to parole or goodtime credits," KDOC could not arbitrarily interpret state law to deny such credits. Id. The Court of Appeals of Kentucky affirmed the trial court, stating:
KRS 197.045 states in part:
Id. at 4-6 (citing Fryar v. Commonwealth, No. 2014-CA-000776-MR, 2015 WL 2445117, at *1-2 (Ky. Ct. App. May 22, 2015)). On February 10, 2016, the Supreme Court of Kentucky denied Fryar's motion for discretionary review. Id. at 6.
Conclusions of Law
Fryar now petitions for a writ of habeas corpus, asserting that the Warden has unlawfully denied him meritorious good time credits due to his inability to participate in a sex offender treatment program (SOTP) because his request for transfer from EKCC to a Kentucky corrections facility that offers an SOTP program had been repeatedly denied. Id. at 1. He argues that KDOC and the Commonwealth of Kentucky have unconstitutionally extended his prison sentence in violation of the Due Process Clause of the United States Constitution. Pet. 5, ECF No. 1. The magistrate judge recommended that Fryar's petition be dismissed with prejudice and that he be denied a certificate of appealability. R. & R. 9, ECF No. 13.
This Court "must determine de novo any proposed finding or recommendation to which objection is made." Rule 8 of the Rules Governing § 2254 Cases.
The Magistrate Judge's Use of the Standard Under 28 U.S.C. § 2254
The magistrate judge stated, "Fryar has filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254" and proceeded to apply the standard under that statute. R. & R. 6, ECF No. 13. Fryar objects to the magistrate judge's use of this standard. Obj. R. & R. 1-2, ECF No. 14. He asserts that his petition "was certainly not a 2254 petition, but a 2241 petition concerning a challenge or action which impacts the length of time he must stay in prison to satisfy the sentence." Id. at 2. He argues that the proper standard under 28 U.S.C. § 2241 should be applied. Id.
Fryar is correct that he filed his petition under 28 U.S.C. § 2241. See Pet. 1, ECF No. 1. Section 2241 is properly used for petitions which challenge "the manner in which a sentence is executed." Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 1998). Thus, the computation of meritorious good time credits is a proper § 2241 challenge. See, e.g., Sullivan v. United States, 90 F. App'x 862, 863 (6th Cir. 2004). Accordingly, contrary to the magistrate judge's conclusion otherwise, Fryar's petition for a writ of habeas corpus is one under 28 U.S.C. § 2241.
In the Sixth Circuit, however, state prisoners who proceed under 28 U.S.C. § 2241 do so subject to the restrictions imposed by § 2254. Allen v. White, 185 F. App'x 487, 490 (6th Cir. 2006) (citing Greene v. Tenn. Dep't of Corr., 265 F.3d 369, 371 (6th Cir. 2001)). "While a federal prisoner may collaterally attack the lawfulness of his sentence under § 2255 and the execution of his sentence under § 2241, for state prisoners, § 2254 is the proper vehicle for both types of collateral challenges." Williams v. White, No. 5:14-CV-159-GNS-LKK, 2015 WL 1298627, at *5 n.3 (W.D. Ky. Mar. 23, 2015) (citing Allen, 185 F. App'x 487). Thus, the magistrate judge correctly construed Fryar's petition as one under § 2254 for the purposes of his analysis.
Accordingly, Fryar's petition must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. §§ 2241(c)(3) and 2254(a). Neither the Constitution nor Kentucky statute creates a liberty interest in future meritorious good time. Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008). As such, prison officials have discretion under Kentucky Revised Statutes § 197.045(1) to deny prisoners future good time. Id. On de novo review, the Court sees no abuse of that discretion here. Because there is no right to accumulate meritorious good time credits, Fryar is not in custody in violation of the Constitution or laws or treaties of the United States. Therefore, the Court will adopt the magistrate judge's conclusion of law and will deny Fryar's petition for a writ of habeas corpus.
The Magistrate Judge's Interpretation and Use of Carpenter
The magistrate judge relied on Carpenter for further support of his conclusion that Fryar's petition should be denied. R. & R. 7-8, ECF No. 13. Fryar argues that this case is distinguishable. Obj. R. & R. 2, ECF No. 14. In Carpenter, the petitioner was convicted for both first-degree sexual abuse and for being a first-degree persistent felony offender. 2012 WL 2021718, at *1. KDOC refused to award Carpenter meritorious good time credit for any of his sentence until he completed the SOTP. Id. Carpenter refused to do so because he maintained his innocence of the sexual abuse charge. Id. Under Kentucky law, a sexual offender is not eligible for sentencing credits until he or she completes the SOTP. Ky. Rev. Stat. Ann. § 197.045(4). The court found that not only did the statute permit prison officials to deny Carpenter meritorious good time credits, but also that there was no constitutional right to meritorious good time credit. Carpenter, 2012 WL 2021718, at *2.
Fryar argues that Carpenter is distinguishable because Carpenter refused to complete the SOTP, while Fryar was denied the opportunity to participate in the SOTP. Obj. R. & R. 2-3, ECF No. 14. The Court agrees that Carpenter can be distinguished in this way. But regardless of these differences, Carpenter is relevant. Carpenter accurately lays out that there is "no constitutional right to meritorious good time credit." 2012 WL 2021718, at *2. It also points out that "Kentucky's good time statute permits, but does not require, the KDOC to award such credit." Id. (citing Ky. Rev. Stat. Ann. 197.045(1)(b)(1)). And it correctly concludes that "the award of meritorious good time credit is a privilege, not a right." Id. (citing Anderson v. Parker, 964 S.W.2d 809, 810 (Ky. Ct. App. 1997)). For these reasons, the Court will adopt the magistrate judge's report and recommendation and will deny Fryar's petition for a writ of habeas corpus.
Certificate of Appealability
Before Fryar may appeal this Court's decision, he must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). Certificates of appealability are only available "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483 (2000). The question is whether "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484.
The magistrate judge found that his conclusion and the decision of the Kentucky Court of Appeals was not contrary to law and was not "reasonably debatable by fair-minded jurists." R. & R. 8, ECF No. 13. On de novo review, this Court finds that reasonable jurists would not find this assessment of Fryar's petition to be debatable or wrong. There is no constitutional right to meritorious good time credits. Therefore, the Court will deny a certificate of appealability to Fryar on his petition for a writ of habeas corpus.
The Court will adopt the magistrate judge's report and recommendation in full. The Court will deny Fryar's petition for a writ of habeas corpus. The Court will deny Fryar a certificate of appealability.
The Court will issue an order in accordance with this memorandum opinion.