United States District Court, S.D. West Virginia, Beckley
PROPOSED FINDINGS AND RECOMMENDATION
L. TINSLEY UNITED STATES MAGISTRATE JUDGE.
consolidated matters are assigned to the Honorable Irene C.
Berger, United States District Judge, and referred to the
undersigned United States Magistrate Judge for submission of
proposed findings and a recommendation for disposition,
pursuant to 28 U.S.C. § 636(b)(1)(B). Pending for
disposition by the court are the petitioner's section
2241 petitions challenging the calculation of his Earned
Statutory Good Conduct Time (“ESGCT”) and a
Motion to Issue Injunction Against the Warden and Adm/Staff
to Stop Withholding Legal Mail (ECF No. 46).
reasons set forth herein, it is respectfully
RECOMMENDED that the petitioner's
Petition for Writ of Habeas Corpus (Case No. 5:17-cv-02312,
ECF No. 3; Case No. 5:17-cv-02626, ECF No. 1) be
DENIED and that his Motion to Issue
Injunction Against the Warden and Adm/Staff to Stop
Withholding Legal Mail (ECF No. 46) be DENIED AS
1995, the petitioner was convicted of three felony drug and
firearm offenses in the United States District Court for the
Middle District of Tennessee. He was sentenced to serve 322
months in prison, followed by a six-year term of supervised
release. After an unsuccessful direct appeal, the petitioner
has filed numerous motions and petitions for post-conviction
relief, both in his court of conviction, and in other courts
in the jurisdictions where he has been incarcerated. The
petitioner's filings in these various courts appear to
have run the gamut of claims challenging his convictions and
the imposition of his sentence, his conditions of
confinement, tort claims and retaliation claims against
Federal Bureau of Prisons (“BOP”) officials,
Freedom of Information Act and Privacy Act claims, and claims
concerning the calculation of his ESGCT.
time he filed the instant petitions, the petitioner was
incarcerated at FCI Beckley in Beckley, West Virginia, with a
projected release date of May 4, 2019. As noted in the
Memorandum Opinion and Order entered herein by Judge Berger
on January 16, 2019, in addition to his challenge to his
ESGCT, the petitioner's instant petitions, which were
filed pursuant to 28 U.S.C. § 2241, also asserted
“challenges to his arrest, conviction, and sentence, as
well as an asserted effort by the [BOP] to conceal the
alleged unlawful circumstances surrounding his arrest and
conviction.” (ECF No. 54 at 3). Additional motions, and
attachments thereto, appear to seek tort or other relief
concerning the petitioner's conditions of confinement and
treatment by BOP officials. However, such claims, even
liberally construed, are insufficiently pled and fail to
state a claim upon which relief can be granted herein.
Berger's January 16, 2019 Memorandum Opinion and Order
found that all of the petitioner's claims concerning the
validity of his arrest, conviction, and sentence, his claims
of a coverup or other misconduct by BOP officials, and his
claims concerning his conditions of confinement are not
proper for review in this court under section 2241.
Accordingly, the presiding District Judge has dismissed for
lack of jurisdiction all claims other than the
petitioner's claim concerning the calculation and
application of his ESGCT.
this Proposed Findings and Recommendation will address only
the claim concerning the calculation and application of the
petitioner's ESGCT, which appears to have been correctly
calculated. Additionally, as addressed further
infra, based upon the petitioner's release from
custody at FCI Beckley to a Residential Reentry Center in
Nashville, Tennessee, his Motion to Issue Injunction Against
the Warden and Adm/Staff to Stop Withholding Legal Mail (ECF
No. 46) should be denied as moot.
The petitioner's claim concerning his ESGCT.
the petitioner's section 2241 petitions, which are not a
model of clarity, assert that the BOP had inaccurately
calculated and applied his ESGCT. He specifically contends
that the BOP improperly withheld ESGCT and that he has
overserved the imprisonment portion of his sentence. On April
18, 2018, as ordered by the undersigned, the respondent filed
a Response concerning the application of the petitioner's
ECGCT. The Response sets forth the following procedural
history derived from the petitioner's Presentence
Investigation Report and documents from his criminal
September 20, 1995, the petitioner was indicted in the United
States District Court for the Middle District of Tennessee,
Case No. 1:95-cr-00006, on one count of Felon in Possession
of a Firearm, one count of Possession with Intent to
Distribute Cocaine, and one count of Use of a Firearm During
a Drug Trafficking Crime. (ECF No. 29 at 1-2 and Ex. 1,
Attach. A). These offenses were committed on August 4, 1995.
September 28, 1995, the petitioner was arrested in Maury
County, Tennessee, for Sale of Cocaine Over 5 Grams, Case
Nos. 9110 and 9112, Facilitation of Sale of Cocaine, Case
Nos. 9111 and 9114, and Delivery of Over 26 Grams of Cocaine,
Case No. 9113. (Id. at 2 and Ex. 1). On September
29, 1995, a federal arrest warrant was executed concerning
the September 20, 1995 indictment and the petitioner was
taken into the custody of the United States Marshals Service
(“USMS”). (Id. at 2 and Ex. 1, Attach.
B, USMS Prisoner Tracking Form).
February 20, 1996, following his conviction by a jury on the
federal charges, the petitioner was sentenced in the United
States District Court for the Middle District of Tennessee to
an aggregate term of 322 months in prison. (Id. at 2
and Ex. 1, Attach. C, Judgment in a Criminal Case). On March
21, 1997, all of the charges in Maury ...