United States District Court, N.D. West Virginia, Martinsburg
JOVAN P. CUNNINGHAM, Petitioner,
WARDEN R. HUDGINS, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
M. GROH CHIEF UNITED STATES DISTRICT JUDGE.
before the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Robert W. Trumble. 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 [ECF No. 6] on October 8, 2019. Therein,
Magistrate Judge Trumble recommends that the Petitioner's
§ 2241 petition [ECF No. 1] be denied and dismissed
Standard of Review
to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of the magistrate judge's
findings where 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 to which no objection is made. 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 service. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b). The Petitioner accepted
service of Magistrate Judge Trumble's R&R on June 7,
2019. ECF No. 7. The Petitioner filed his objections on June
17, 2019. ECF No. 8. Accordingly, this Court will review the
portions of the R&R to which the Petitioner objects
October 7, 2019, the Petitioner filed an application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF
No. 1. Therein, the Petitioner requests jail credit for an
18-month state sentence served in Milwaukee County Circuit
Court No. 16CF2339. In support, the Petitioner avers that the
Eastern District of Wisconsin, the federal sentencing court
in this matter, ordered that his federal and state sentences
to 28 U.S.C. § 2241, a prisoner may file a writ of
habeas corpus attacking the computation and execution of his
sentence rather than the sentence itself. U.S. v.
Miller, 871 F.2d 488, 490 (4th Cir. 1989). A
prisoner's § 2241 petition should be reviewed in the
district of confinement, not the sentencing court.
Id. Prisoners have appropriately used § 2241
petitions to challenge “the computation of parole,
computation of good time or jail credits, prison disciplinary
actions, or imprisonment allegedly the expiration of a
sentence.” Dailey v. Perdue, 2012 WL 5306244,
at *2 (N.D. W.Va. Oct. 4, 2012), report and
recommendation adopted, 2012 WL 5336952 (N.D. W.Va. Oct.
18, United States Code, Section 3585(b) governs the
calculation of a term of imprisonment and provides:
(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
(1) as a result of the offense for which the sentence was
(2) as a result of any other charge which the defendant was
arrested after the commission of the offense for which the
sentence was imposed; that has not been credited against
other words, for a petitioner to receive credit for previous
time served under § 3585(b), “a determination must
necessarily have already been made that such previous time
served before the federal sentence commenced under §
3585(a) and that such time was not already credited against
another sentence.” Johnson v. Deboo, ...