United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
day, the above-styled matter came before the Court for
consideration of the Report and Recommendation (AR&R@) of
United States Magistrate Judge Robert W. Trumble. ECF No. 19.
Pursuant to this Court's Local Rules, this action was
referred to Magistrate Judge Trumble for submission of a
proposed R&R. Magistrate Judge Trumble issued his R&R
on October 25, 2018. In the R&R, he recommends that the
Petitioner's § 2241 petition [ECF No. 1] be denied
and dismissed with prejudice.
Standard of Review
Pursuant 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).
Failure to file timely objections constitutes a waiver of
de novo review and of a 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).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of the Petitioner being served with
a copy of the same. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). The R&R was mailed to the Petitioner by certified
mail on October 25, 2018. ECF No. 19. The Petitioner accepted
service on October 29, 2018. ECF No. 20. The Petitioner filed
objections on November 7, 2018. ECF No. 21. Accordingly, the
Court will review the portions of the R&R to which the
Petitioner objects de novo.
§ 2241 petition, the Petitioner alleges that the Federal
Bureau of Prisons unlawfully denied him credit for time
served. The Petitioner asks the Court to order the BOP to
credit him for his time served and to correct his
“total term in effect.” Upon 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 this case.
14, 2012, Petitioner was sentenced in case number 1:11-CR-120
in the Northern District of Illinois. The Petitioner was
sentenced to 91 months of incarceration, comprised of 45
months on Count One and 46 months on Count Two, to run
consecutively. While serving this sentence, Petitioner was
indicted and found guilty of other charges in case number
1:13-CR-772-2. In this case, Petitioner was sentenced to 30
years for Counts One and Nine which were to run concurrently
with one another and with his sentence he was currently
serving; 36 months for Count Two to run concurrently with
Counts One and Nine and with his sentence he was currently
serving; and 120 months for Count Three, which was to run
consecutively to the sentence imposed in Counts One, Two and
Nine and the sentence he was currently serving. Defendant was
also to be given credit for time served on the sentence
imposed in 1:11-CR-120.
Attorney General, acting through the Bureau of Prisons, has
responsibility for calculating a defendant's jail credit.
United States v. Wilson, 503 U.S. 329, 331-32
(1992). When calculating a defendant's credit for time
served, the BOP should follow 18 U.S.C. § 3585(b), which
(b) Credit for prior custody - 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
(2) as a result of any other charge for which the defendant
was arrested after the commission of the offense for which