United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING
RESPONDENT'S MOTION TO DISMISS OR FOR SUMMARY
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se petitioner, a federal inmate housed at FCI
Hazelton, filed a Petition for Habeas Corpus pursuant to 28
U.S.C. § 2241. ECF No. 1. This habeas petition arises
out of the calculation by the Federal Bureau of Prisons
(“BOP”) of the petitioner's sentence. The
petitioner is currently serving a 72-month sentence for
conspiracy to possess with intent to distribute 50 grams or
more of methamphetamine. ECF No. 14-1 at 1. His federal
sentence was to run concurrently with various sentences from
the state of Virginia for possession of a controlled
substance, driving while intoxicated, and probation
violations. ECF No. 14-1 at 2-3.
§ 2241 petition, the petitioner alleges that while in
state custody he was turned over to federal authorities
pursuant to a writ of habeas corpus ad prosequendum. ECF No.
1-1 at 1. However, the petitioner alleges that upon
completion of the petitioner's federal court proceedings,
the United States Marshall Service (“USMS”)
failed to return him to state custody. ECF No. 1-1 at 1-2.
Further, the petitioner alleges that the BOP failed to
designate his federal sentence to be served concurrently to
his state sentence. ECF No. 1 at 5-6. For relief, the
petitioner requests that this Court order the USMS to return
the petitioner to a state facility and for the BOP to
designate a state facility for the concurrent service of his
federal sentence. ECF No. 1 at 8.
respondent, the Warden of FCI Hazelton, filed a motion to
dismiss the petition as moot, or, in the alternative, for
summary judgment. ECF No. 14. In the respondent's
memorandum in support, the respondent agrees with the
petitioner that the petitioner should have been returned to
Virginia authorities after his federal court proceedings were
completed. ECF No. 14-1 at 6. However, after the petition was
filed, the Virginia Department of Corrections was notified of
the error and retroactively gave the petitioner credit
towards his state sentence for time served in federal prison
and removed the detainer the Department of Corrections had
lodged against the petitioner. ECF No. 14-1 at 2. Thus, when
the petitioner completes his federal sentence, “he will
have no outstanding Virginia state sentence to serve.”
ECF No 14-1 at 6. Therefore, the respondent argues that the
petition is now moot because the petitioner has received the
benefit of a concurrent service of his state and federal
sentences. ECF No. 14-1 at 10-11.
to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States
Magistrate Judge James E. Seibert. The magistrate judge
entered a report and recommendation. ECF No. 20. In that
recommendation, the magistrate judge recommended that the
respondent's motion to dismiss or for summary judgment be
granted and the petitioner's § 2241 petition be
denied and dismissed with prejudice. ECF No. 20 at 8. The
magistrate judge agreed with the respondent that because the
Virginia Department of Corrections has already given the
petitioner credit toward his state sentence for time in
federal custody, there is no longer any need for the BOP to
designate a state facility for the service of the
petitioner's federal sentence. ECF No. 20 at 6-7.
Accordingly, the magistrate judge found that the petition
should be denied and dismissed with prejudice. ECF No. 20 at
magistrate judge advised the parties that, pursuant to 28
U.S.C. § 636(b)(1)(C), any party may file written
objections to his proposed findings and recommendations
within 14 days after being served a copy of the report and
recommendation. Neither party filed any objections to the
report and recommendation.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be adopted in
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which objection is timely made.
Because the petitioner did not file any objections to the
report and recommendation, the magistrate judge's
findings and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
reviewing the parties' filings and the record, this Court
is not “left with the definite and firm conviction that
a mistake has been committed” by the magistrate judge.
United States v. Gypsum Co., 333 U.S. at 395. The
magistrate judge correctly held the pro se petition
to less stringent standards than those complaints drafted by
attorneys. See Haines v. Kerner, 404 U.S. 519, 520
(1972). Upon review, the magistrate judge concluded that
because the Virginia Department of Corrections has now
credited the petitioner for time in federal custody, the
intent of the sentencing court has been accomplished. ECF No.
20 at 6-7. The magistrate judge correctly found that the
petitioner has now received all due credit for prior custody
and that he will have no outstanding Virginia state sentence
once released from BOP custody. ECF No. 20 at 7-8.
this Court finds that the findings of the magistrate judge
are not clearly erroneous. Accordingly, the report and