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. On October 7, 2004, the
petitioner was sentenced in federal court to two 77-month
sentences for attempting to interfere with interstate
commerce through threats and violence and for unauthorized
possession of a firearm; these sentences were to be served
concurrently. ECF No. 28 at 2. The petitioner was also
sentenced to 84 months for using a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A). ECF
No. 28 at 2. Under § 924(c)(1)(D)(ii), the
petitioner's 84-month sentence could not run concurrently
with any other term of imprisonment. On October 18, 2004, the
petitioner was further sentenced by the Court of Common Pleas
in Trumbull County, Ohio to 11 years for aggravated robbery
and kidnaping. ECF No. 28 at 3. On January 16, 2015, the
petitioner completed his state sentence and was transferred
to federal custody. ECF No. 28 at 3.
habeas petition arises out of the Federal Bureau of
Prison's (“BOP”) calculation of the
petitioner's federal sentence. ECF No. 1. The petitioner
makes two claims. First, the petitioner claims that the BOP
acted unlawfully when it denied the petitioner credit for
time served in state custody towards his federal sentence.
ECF No. 1 at 5. Second, the petitioner claims that by failing
to make him aware that his state and federal sentences would
be served consecutively, the prosecutor for the State of Ohio
deprived the petitioner of his due process rights. ECF No. 1
respondent filed a motion to dismiss or, alternatively, for
summary judgment. ECF No. 18. In the respondent's
memorandum in support, the respondent argues that the
petition is moot. ECF No. 19 at 12. First, the respondent
points out that “the BOP has exclusive authority and
discretion to compute federal prison sentences, ” and
that this includes the authority to determine whether the
petitioner's federal sentence is to run concurrent with
any other sentence. ECF No. 19 at 7. Second, the respondent
argues that the petitioner has already received the relief
requested because the BOP recomputed his sentence so that the
77-month sentence ran concurrent with the state sentence. ECF
No. 19 at 11. The BOP cannot do the same with the
petitioner's 84-month sentence because under 18 U.S.C.
§ 924(c) that sentence cannot run concurrently with any
other sentence. ECF No. 19 at 11. Thus, the petitioner has
already received the full extent of relief permitted by law
and BOP policy. ECF No. 19 at 11-12. Finally, the respondent
argues that the petitioner's request for a declaratory
judgment against the Ohio state authorities is not cognizable
under a § 2241 petition since it would not entitle him
to a speedier release from federal custody. ECF No. 19 at 11.
petitioner then filed a response to the respondent's
motion to dismiss. ECF No. 22. In his response, the
petitioner requests that he be immediately released. ECF No.
22 at 11. The petitioner argues that the state court and
state prosecutor created the “legitimate expectation
that [the petitioner's] sentences” would be served
concurrently. ECF No. 22 at 8. The petitioner argues that
because of this legitimate expectation, he is entitled
“to some measure of due process protection.” ECF
No. 22 at 9.
respondent then filed a supplemental response. ECF No. 26. In
the supplemental response, the respondent clarifies that the
BOP originally computed the petitioner's entire sentence
to run consecutively to the state sentence; after the
petitioner filed his § 2241 petition, the BOP conferred
with the federal sentencing judge and recalculated his
sentence. ECF No. 26 at 4-5. Under the BOP's
recalculation, the 77-month sentence ran concurrently with
the state sentence. ECF No. 26 at 5. However, the respondent
argues that under 18 U.S.C. § 924(c), the
petitioner's 84-month sentence cannot run concurrently
with any other state or federal term of imprisonment. ECF No.
26 at 5. Under the BOP's current calculation, taking into
consideration good conduct time lost for disciplinary
infractions, the petitioner's projected release date is
April 7, 2021. ECF No. 26 at 6.
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 then
entered a report and recommendation. ECF No. 28. In that
recommendation, the magistrate judge recommended that the
respondent's motion to dismiss be granted and the
petitioner's § 2241 petition be dismissed with
prejudice. ECF No. 28 at 12. The magistrate judge found that
the petitioner had already been awarded credit for his
77-month sentence for time spent serving his state sentence.
ECF No. 28 at 11-12. Because 18 U.S.C. § 924(c) does not
allow the petitioner's 84-month sentence to be served
concurrently with his state sentence, the petitioner has
already received all of the relief to which he was entitled.
ECF No. 28 at 11-12. As to the petitioner's claim
regarding the state authorities, the magistrate judge found
that “this court has no authority over the actions
taken in [the petitioner's] State proceedings.” ECF
No. 28 at 12. Accordingly, the magistrate judge found that
the petitioner's § 2241 petition is moot and should
be denied and dismissed with prejudice. ECF No. 28 at 12.
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 Statesv. 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 “the [p]etitioner has received all of the relief
to which he is entitled by virtue of his habeas petition, and
the same is now moot.” ECF No. 28 ...