United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
THE REPORT AND RECOMMENDATION OF THE MAGISTRATE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
pro se petitioner, Abdul Muhammad, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241. ECF No. 1. The petitioner challenges the method
used by the Federal Bureau of Prisons (“BOP”) to
calculate his sentence, and seeks prior custody credit from
March 21, 2011, until August 19, 2014. In addition, the
petitioner requests that he be transferred from USP Hazelton
to a medium security prison.
civil action was referred to United States Magistrate Judge
James E. Seibert under Local Rule of Prisoner Litigation
Procedure 2, and then reassigned to United States Magistrate
Judge James P. Mazzone. Following a preliminary review, which
determined that summary dismissal was not appropriate, the
respondent was ordered to show cause why the petition should
not be granted. ECF No. 15. The respondent filed a motion to
dismiss or in the alternative for summary judgment, together
with a supporting memorandum of law and exhibits. ECF Nos.
20, 21. A Roseboro notice was issued. ECF No. 24.
The petitioner filed a response in opposition. ECF No. 29.
The respondent filed a reply. ECF No. 30. Petitioner then
filed an additional response. ECF No. 31. On September 18,
2018, this matter was stayed, and the respondent was directed
to take further action. ECF No. 38. The respondent then filed
a second motion to dismiss or in the alternative for summary
judgment with a brief memorandum in support and exhibits. ECF
No. 42, 43. On December 21, 2018, an order was entered
lifting the stay. ECF No. 44. On December 26, 2018, a second
Roseboro notice was issued. To date, the petitioner
has not responded.
Judge James P. Mazzone issued a report and recommendation
(ECF No. 48) recommending that petitioner's petition be
denied and dismissed. The plaintiff did not file objections
to the report and recommendation. For the following reasons,
this Court affirms and adopts the report and recommendation
in its entirety.
to 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.
As to findings where no objections were made, such findings
and recommendations will be upheld unless they are
“clearly erroneous or contrary to law.” 28 U.S.C.
§ 636(b)(1)(A). 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. § 636(b)(1)(A).
report and recommendation, the magistrate judge found that in
the instant case, the Designation and Sentence Computation
Center (“DSCC”) sent a letter to the federal
sentencing judge, United States District Judge Dennis M.
Cavanaugh, dated December 24, 2014 regarding the sentencing
court's position on applying a retroactive designation.
The magistrate judge concluded that a response was never
received by the DSCC as Judge Cavanaugh had already retired,
and the BOP subsequently denied the petitioner's nunc
pro tunc designation. The magistrate judge then
confirmed that Judge Cavanaugh retired on January 31, 2014,
nearly one year before the letter was sent. Moreover, the
pro se law clerk assigned to this matter contacted
the chambers of United States District Judge Stanley R.
Chesler, to whom the case was reassigned, and was advised by
his courtroom deputy that the petitioner's file gave no
indication that the letter from DSCC was ever received by
this matter was stayed, and this Court ordered that the DSCC
send a letter to Judge Chesler which mirrored the letter sent
to Judge Cavanaugh. Id. at 12. On September 21,
2018, that letter was sent as ordered. On December 11, 2018,
the DSCC received response from the sentencing court that
stated the federal sentence should run concurrently with the
state sentence imposed on the petitioner. Id.
Accordingly, as the magistrate judge correctly noted, a new
sentence calculation was completed and certified by DSCC,
with the petitioner's sentence beginning on September 26,
2012, and jail credit awarded for the time from March 21,
2011, to September 25, 2012.
magistrate judge further noted that the petitioner's
current projected release date via good conduct time is
December 5, 2027, and that the petitioner was designated from
the United States Penitentiary at Hazelton, a high security
institution, to the Federal Correctional Institution at
Hazelton, a medium level institution on December 12, 2018.
Thus, the magistrate judge concluded that because of the
actions of the DSCC and the BOP following this Court's
order of September 18, 2018, the petitioner has received the
relief he requested, and no further relief can be awarded.
review, this Court finds no clear error in the determinations
of the magistrate judge and thus upholds his recommendation.
reasons set forth above, the report and recommendation of the
magistrate judge (ECF No. 48) is AFFIRMED and ADOPTED in its
entirety. Accordingly, the respondent's motion to dismiss
or for summary judgment (ECF No. 20) is DISMISSED, the
respondent's motion to dismiss or for summary judgment
(ECF No. 42) is GRANTED, and the ...