Gragg v. Nickrenz

Filing 4

ORDER ADOPTING REPORT AND RECOMMENDATION. 1. Magistrate Judge Franklin L. Noel's July 30, 2015 Report and Recommendation (Doc. No. 3 ) is ADOPTED. 2. Petitioner Kenneth Gragg's petition for a writ of habeas corpus (Doc. No. 1 ) is DENIED. 3. This action is DISMISSED WITH PREJUDICE pursuant to Rule 4 of the Rules Governing Section 2254 cases. (Written Opinion). Signed by Judge Donovan W. Frank on 9/17/2015. (BJS)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kenneth Gragg,

Civil No. 15-2718 (DWF/FLN)
Plaintiff,

v.

ORDER ADOPTING REPORT
AND RECOMMENDATION

C. Nickrenz, Warden,
Defendant.

The above matter comes before the Court upon the Report and Recommendation
of United States Magistrate Judge Franklin L. Noel dated July 30, 2015. (Doc. No. 3.)
No objections have been filed to that Report and Recommendation in the time period
permitted.
The factual background for the above-entitled matter is clearly and precisely set
forth in the Report and Recommendation and is incorporated by reference. The Report
and Recommendation addresses Petitioner’s writ of habeas corpus, brought under
28 U.S.C. § 2241. 1 In the Report and Recommendation, the Magistrate Judge concluded
that Petitioner’s argument that the Federal Bureau of Prisons (“BOP”) abused its

1

Section 2241 applies to challenges to the manner in which the sentence is being
administered. See Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002) (explaining
that “[a] petitioner may attack the execution of his sentence through § 2241 in the district
where he is incarcerated”); see also Swehla v. Wilson, Civ. No. 13-1919, 2013
WL 6190379, at *7 (D. Minn. Nov. 27, 2013) (citation omitted). Further, as the
Magistrate Judge states: “Although [Petitioner] seeks relief under § 2241, the Rules
Governing Section 2254 Cases nevertheless apply here. See Rule 1(b).” (Doc. No. 3
at 1 n.1.)

discretion by denying his request for a reduction of time in custody following his
completion of a substance abuse program had no merit because “lawfully promulgated
federal regulations prohibit the BOP from reducing the time in custody of federal
prisoners incarcerated for illegally possessing firearms, and thus the BOP could not have
abused its discretion in denying [Petitioner] relief.” (Doc. No. 3 at 1.)
The undersigned agrees with the Magistrate Judge’s determination that the
Petitioner is not entitled to relief because the BOP was acting in accordance with federal
regulations when denying Petitioner’s request for early release. Accordingly, based upon
the Report and Recommendation of the Magistrate Judge and upon all of the files,
records, and proceedings herein, the Court now makes and enters the following:
ORDER
1.

Magistrate Judge Franklin L. Noel’s July 30, 2015 Report and

Recommendation (Doc. No. [3]) is ADOPTED.
2.

Petitioner Kenneth Gragg’s petition for a writ of habeas corpus (Doc.

No. [1]) is DENIED.
3.

This action is DISMISSED WITH PREJUDICE pursuant to Rule 4 of the

Rules Governing Section 2254 cases.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: September 17, 2015

s/Donovan W. Frank
DONOVAN W. FRANK
United States District Judge

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