United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE
before the Court is a Report and Recommendation
(“R&R”) entered by United States Magistrate
Judge James E. Seibert on November 14, 2017. ECF No. 24.
Pursuant to Rule 2 of the Local Rules of Prisoner Litigation
Procedure, this action was referred to Magistrate Judge
Seibert for submission of an R&R. Therein, Magistrate
Judge Seibert recommends that this Court grant the
Respondent's Motion to Dismiss, deny the Petitioner's
Petition and dismiss the same with prejudice. The Petitioner
timely filed objections to the R&R on December 8, 2017.
ECF No. 27. Accordingly, this matter is now ripe for
February 7, 2017, Gilberto Alicea (“Petitioner”)
filed a petition for habeas corpus pursuant to 28 U.S.C.
§ 2241. ECF No. 1. In his petition, the Petitioner
argued that the “BOP breached state sentencing
Judge's contract in regard to [four and a half to nine]
year concurrent sentencing term that is relevant to the
[seventy-eight] month Federal conviction. ECF No. 1 at 10.
The Petitioner also claims that the BOP was negligent in
failing to honor “the relevancy of the state and
federal cases.” Id. at 11. On July 7, 2017,
the Respondent filed a motion to dismiss, or in the
alternative, for summary judgment. ECF No. 18. Thereafter,
Magistrate Judge Seibert entered a Roseboro notice [ECF No.
20], and the Petitioner filed a response on July 31, 2017.
ECF No. 22.
November 14, 2017, Magistrate Judge Seibert entered an
R&R. ECF No. 24. Thereafter, the Petitioner filed a
motion for an extension of time to object [ECF No. 26], on
December 4, 2017. Four days later, the Petitioner timely
filed objections [ECF No. 27] because it had been less than
fourteen days from the date he received Magistrate Judge
Seibert's R&R. See ECF No. 25.
reviewing the record, the Court finds that the facts as
explained in the R&R accurately and succinctly describe
the circumstances underlying the Petitioner's claims. For
ease of review, the Court incorporates those facts herein;
however, it will briefly outline the most relevant facts of
November 2007, while on parole in Pennsylvania, the
Petitioner was arrested for manufacturing, delivery, or
possession with intent to manufacture or deliver a controlled
substance, receiving stolen property and unlawful possession
of a firearm by a convicted felon. Ultimately, the Petitioner
pled guilty to the firearm charge in federal court and the
remainder of the charges in state court (in Pennsylvania).
Thereafter, the Petitioner received sentences from the State
of Pennsylvania on the new charges, from the parole board for
receiving the new charges while on parole, and from the
District Court for the Middle District of Pennsylvania. The
Petitioner filed this action seeking a writ to Order that the
BOP run his state and federal sentences concurrently.
to 28 U.S.C. § 636(b)(1)(c), this Court is required to
make a de novo review of those portions of the
magistrate judge's findings to which objection is made.
However, the Court is not required to review, under a de
novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of
the findings or recommendation to which no objections are
addressed. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Further, failure to file timely objections constitutes a
waiver of de novo review and the Petitioner's
right to appeal this Court's Order. 28 U.S.C. §
636(b)(1); Snyder v. Ridenour, 889 F.2d 1363, 1366
(4th Cir.1989); United States v. Schronce, 727 F.2d
91, 94 (4th Cir.1984). Pursuant to this Court's local
rules, “written objections shall identify each portion
of the Magistrate's recommended disposition which is
being challenged and shall specify the basis for such
objection.” LR PL P 12.2.
a party does make objections, but these objections are so
general or conclusory that they fail to direct the district
court to any specific error by the magistrate judge, de novo
review is unnecessary.” Green v. Rubenstein,
644 F.Supp.2d 723, 730 (S.D. W.Va. 2009) (citing Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982)).
“When only a general objection is made to a portion of
a magistrate judge's report-recommendation, the Court
subjects that portion of the report-recommendation to only a
clear error review.” Williams v. New York State
Div. of Parole, No. 9:10-CV-1533 (GTS/DEP), 2012 WL
2873569, at *2 (N.D.N.Y. July 12, 2012). “Similarly,
when an objection merely reiterates the same arguments made
by the objecting party in its original papers submitted to
the magistrate judge, the Court subjects that portion of the
report-recommendation challenged by those arguments to only a
clear error review.” Taylor v.
Astrue, 32 F.Supp.3d 253, 260-61 (N.D.N.Y. 2012).
Courts have also held that when a party's objection lacks
adequate specificity, the party waives that objection.
See Mario v. P & C Food Markets, Inc.,
313 F.3d 758, 766 (2d Cir. 2002) (finding that even though a
party filed objections to the magistrate judge's R&R,
they were not specific enough to preserve the claim for
review). Bare statements “devoid of any reference to
specific findings or recommendations . . . and unsupported by
legal authority, [are] not sufficient.” Mario
313 F.3d at 766. Pursuant to the Federal Rules of Civil
Procedure and this Court's Local Rules, “referring
the court to previously filed papers or arguments does not
constitute an adequate objection.” Id.;
See also Fed.R.Civ.P. 72(b); LR PL P 12. Finally,
the Fourth Circuit has long held, “[a]bsent objection,
we do not believe that any explanation need be given for
adopting [an R&R].” Camby v. Davis, 718
F.2d 198, 200(4th Cir. 1983) (finding that without an
objection, no explanation whatsoever is required of the
district court when adopting an R&R).
a federal conviction and sentencing, the United States
Attorney General, acting through the BOP, is responsible for
calculating an inmate's term of confinement, including a
determination of when the sentence commences. United
States v. Wilson, 503 U.S. 329, 334 (1992). In making
this computation, the BOP must adhere to 18 U.S.C. §
3585(b), which provides as follows:
A defendant shall be given credit toward the service of a
term of imprisonment for any time he has spent in official
detention prior to the date the sentence commences: (1) as a
result of the offense for which the sentence was imposed; or
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which
the sentence was imposed; that has not been credited against
review of all the filings in this matter, the Court finds
that the Petitioner has presented no new material facts or
arguments in his objections to the magistrate judge's
R&R. Rather, the objections reiterate the same arguments
the Petitioner made in his original filings, which were
considered by the magistrate judge when he issued the
R&R. Specifically, these arguments can be found in his
§ 2241 petition and response to the Respondent's
motion to dismiss. Indeed, using the Petitioner's own
words, “Petitioner Alicea[ ] is objecting to the entire
Report and Recommendation . . . .” ECF No. 27 at 2.
Therefore, the Court finds that ...