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Cunningham v. Hudgins

United States District Court, N.D. West Virginia, Martinsburg

December 10, 2019

JOVAN P. CUNNINGHAM, Petitioner,
v.
WARDEN R. HUDGINS, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          GINA M. GROH CHIEF UNITED STATES DISTRICT JUDGE.

         Now 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 without prejudice.

         I. Standard of Review

         Pursuant 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).

         Objections 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 de novo.

         II. Background

         On 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 run concurrently.

         III. Applicable Law

         Pursuant 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. 25, 2012).

         Title 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 sentence commences-
(1) as a result of the offense for which the sentence was imposed; or
(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 another sentence.

         In 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, ...


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