Wedington v. United States of America

Filing 23

ORDER adopting the Recommendation, and adpting in part and modifying in part the Report re 20 Report and Recommendation. (Written Opinion). Signed by Judge John R. Tunheim on July 25, 2012. (DML) (cc: Calvin S. Wedington)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CALVIN S. WEDINGTON,

Civil No. 12-710 (JRT/FLN)
Petitioner,
ORDER ON REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE

v.
UNITED STATES OF AMERICA,1
Respondent.

Calvin S. Wedington, Reg. No. 18915-037, Federal Medical Center, 2110
East Center Street, P.O. Box 4000, Rochester, MN 55903, petitioner pro se.
Ann M. Bildtsen, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, 600 United States Courthouse, 300
South Fourth Street, Minneapolis, MN 55415, for respondent.
This matter is before the Court on the parties’ objections to the Report and
Recommendation (“R&R”). The Magistrate Judge recommended that this Court deny
petitioner Calvin S. Wedington’s motion for immediate release because Wedington’s
petition is moot. The Court has reviewed de novo the objections to the R&R pursuant to
28 U.S.C. § 636(b)(1)(C) and D. Minn. L.R. 72.2(b).

The Court will adopt the

recommendation of the R&R and modify with the changes indicated below the report
section. The Court will therefore deny Wedington’s motion for relief.
1

The Court notes that B.R. Jett, the Warden of Federal Medical Center-Rochester, is the
proper respondent in this case – not the United States of America. See 28 U.S.C. § 2242
(“Application for a writ of habeas corpus . . . shall allege . . . the name of the person who has
custody over [the applicant] and by virtue of what claim or authority, if known.”). The United
States of America will, therefore, be dismissed, and B.R. Jett substituted in its place.

24

BACKGROUND
Petitioner Calvin S. Wedington is currently incarcerated at the Federal Medical
Center-Rochester.

(Mot. for Release, Docket No. 1.)

Wedington is serving a life

sentence with the possibility of parole for the murder of his wife. (Id. at 2.)
Wedington was sentenced on September 15, 1982. (Aff. of Helen H. Krapels,
Ex. A, Sentence Monitoring Computation Data at 1, Docket No. 16.)

Because

Wedington had served jail credit for time prior to his sentencing, he became eligible for
parole on February 20, 2012.2 (Id. at 2.) The United States Parole Commission had
scheduled Wedington’s parole hearing for June 18, 2012. (Krapels Aff., Ex. Q, Hr’g
Docket Prisoner Scheduling.)
Wedington filed a “Motion for Release” on February 21, 2012 in the United States
District Court for the District of Maryland, where he was originally sentenced. (See
Motion for Release.) That court construed Wedington’s motion as a 28 U.S.C. § 2241
petition and transferred it to this Court.

(Order, Mar. 21, 2012, Docket No. 3.)

Wedington seeks immediate release because he contends that the United States Parole
Commission did not provide timely review of his eligibility for parole. In the R&R, the
Magistrate Judge noted that even if the Commission was late in scheduling Wedington’s
eligibility hearing, the Court cannot grant Wedington the relief he seeks – the most the
Court could do is require the Commission to give him “a fair hearing . . . at the earliest
possible date.” (R&R at 2-3 (quoting Jones v. U.S. Bureau of Prisons, 903 F.2d 1178,
2

The R&R mistakenly stated that Wedington was sentenced on February 15, 1982 and
became parole eligible on February 15, 2012. (R&R, Docket No. 20.)

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1181 (8th Cir. 1990)). Because the Commission had scheduled Wedington’s hearing, the
Magistrate Judge recommended Wedington’s motion be dismissed as moot.

ANALYSIS
Upon the filing of a R&R by a magistrate judge, a party may “serve and file
specific written objections to the proposed findings and recommendations.” Fed. R. Civ.
P. 72(b)(2); accord D. Minn. L.R. 72.2(b). “The objections should specify the portions
of the magistrate judge’s report and recommendation to which objections are made and
provide a basis for those objections.” Mayer v. Walvatne, No. 07–1958, 2008 WL
4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which are not specific are not
entitled to de novo review.

See, e.g., Martinez v. Astrue, No. 10–5863, 2011 WL

4974445, at *2-3 (E.D. Pa. Oct. 19, 2011) (citing cases from numerous other
jurisdictions). In the absence of specific objections, the R&R is reviewed for clear error.
Fed. R. Civ. P. 72 advisory committee’s note (“When no timely objection is filed, the
court need only satisfy itself that there is no clear error on the face of the record in order
to accept the recommendation.”); see also Grinder v. Gammon, 73 F.3d 793, 795 (8th Cir.
1996).
The Court finds that Wedington’s filing entitled “Objections to the U.S.
Magistrate Response” makes no specific objections to the R&R. Indeed, Wedington
states “that Petitioner will not be responding to U.S. Magistrate[’]s denial of

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§§2241 . . . .”3 (Pet.’s Obj. to the R&R, Docket No. 21.) The United States makes a
specific objection to the R&R, requesting the change of two dates. Those corrected dates
are noted in the Background section, supra. Upon reviewing the record, the Court finds
that there is no other clear error of law or fact in the R&R, and it will adopt the
recommendation of the Magistrate Judge.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Petitioner’s objection [Docket No. 21], SUSTAINS the
Respondent’s objection [Docket No. 22], ADOPTS the Recommendation, and ADOPTS
IN PART and MODIFIES IN PART the Report of the Magistrate Judge’s Report and
Recommendation [Docket No. 20]. Accordingly, IT IS HEREBY ORDERED that:
1.

Respondent the United States of America is DISMISSED and B.R. Jett, the

Warden of Federal Medical Center-Rochester is SUBSTITUTED in its place.
2.

Petitioner Calvin S. Wedington’s “Motion for Release” [Docket No. 1] is

DENIED.
3.

This case is DISMISSED WITH PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: July 25, 2012
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

3

Wedington also makes other statements that are unclear and do not address the R&R: he
states that he “will verse” Janet Reno and Eric Holder and notes that he requested the federal
defender to assist him in obtaining copies of his payroll.

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