United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Stephen Davis, Jr., filed a
petition for habeas corpus under 28 U.S.C. § 2241
(“§ 2241”). The action was referred to
United States Magistrate Judge James P. Mazzone for initial
review and report and recommendation pursuant to Local Rule
of Prisoner Litigation Procedure 2.
magistrate judge filed a report and recommendation
recommending that this matter be dismissed with prejudice.
ECF No. 31 at 11. The magistrate judge informed the parties
that if they objected to any portion of the report and
recommendation, they were required to file written objections
within 14 days after being served with copies of the report.
Id. at 11-12. Neither party filed objections.
pro se petitioner is currently incarcerated at FCI
Morgantown, where he is serving a sentence imposed by the
United States District Court for the Southern District of
Indiana, Indianapolis Division. ECF No. 1 at 1-2. The
petitioner filed a Petition for Habeas Corpus Under 28 U.S.C.
§ 2241, in which he alleges that the Federal Bureau of
Prisons (“BOP”) failed to credit him with 84 days
when he was placed in Volunteers of America Residential
Re-Entry Center (“RRC”) until he self-reported to
FCI Morgantown. Id. at 5, ECF No. 1-1 at 1-2.
Specifically, the petitioner requests that 84 days be applied
as credit towards his federal sentence. ECF No. 1-1 at 12.
respondent then filed a motion to dismiss or in the
alternative, a motion for summary judgment. ECF No. 18. In
the accompanying memorandum, the respondent argues that the
petitioner's federal sentence did not begin until he
voluntarily surrendered to begin service of his sentence, and
petitioner did not do so until October 24, 2012. ECF No. 18-1
at 7-8. Therefore, his federal sentence could not begin prior
to that date. Id. at 8. Moreover, the respondent
argues that the petitioner is not entitled to such jail
credit, since he was not in official detention at that time.
Id. at 10. In other words, the time he spent out of
custody on bond, or in a halfway house placement, is not
official detention and cannot be credited against his
sentence. Id. Lastly, the respondent asserts that
the sentencing Court's recommendation to credit time
spent at the RRC is not binding. Id. at 11. In
support of his motion to dismiss, the respondent attaches a
declaration by a BOP correctional programs specialist at the
designation and sentence computation center, Patricia Kitka
(“Ms. Kitka”), explaining how the
petitioner's sentence was computed. ECF No. 18-2 at 1-6.
petitioner then filed a response to the respondent's
motion to dismiss, or in the alternative, motion for summary
judgment. ECF No. 26. The petitioner first argues that the
Court's recommendation is “not a recommendation
that the [BOP] may use its discretion. The [p]etitioner was
in a punitive, civil detention and was not yet a
prisoner.” Id. at 1. The petitioner further
argues that the place of custody for civil detention does not
matter. Id. at 3.
petitioner also filed a motion to strike Ms. Kitka's
declaration. ECF No. 25. In the motion, the petitioner argues
that any affidavits or declarations must be made on personal
knowledge, and that “each and every item and attachment
was prepared by persons other than the declarant and is not
admissible in this proceeding.” Id. at 2.
respondent filed a response to the petitioner's motion to
strike. ECF No. 27. In the response, the respondent notes
that the first six paragraphs of the declaration contain
facts, not speculations, or inferences, pertaining to the
petitioner's case history. Id. at 3. Moreover,
paragraph 7 explains the process of sentence calculation.
Id. Lastly, the respondent explains that the
remaining paragraphs detail the calculation of the
petitioner's sentence. Id. Specifically, the
defendant contends that the information provided in the
declaration is information that Ms. Kitka has personal
knowledge because it is part of her training and years of
petitioner then filed a reply to the respondent's
response to petitioner's motion to strike. ECF No. 28. In
the reply, the petitioner asserts that “Ms. Kitka's
declaration  fails to address the salient point of this
action; why did the DSCC employee (obviously NOT Ms. Kitka)
elect to ignore the sentencing judge and federal statute? . .
. [T]he clear absence of first hand knowledge by Ms. Kitka
should require her declaration to be stricken as she fails to
address this action as she did not make the original
decision.” Id. at 2-3.
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 ...