Peagler v. Reese

Filing 30

ORDER adopting 25 Report and Recommendation re Petition pursuant to 28 U.S.C. sec. 2241 and dismissing petition. Signed by Honorable David C. Bramlette, III on 4/2/10 (ECW)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI WESTERN DIVISION ERIC PEAGLER, #7403-002 VS. CONSTANCE REESE, Warden ORDER ADOPTING REPORT AND RECOMMENDATION This cause is before the Court on the Report and PETITIONER CIVIL ACTION NO. 5:07-cv-166(DCB)(MTP) RESPONDENT

Recommendation of Magistrate Judge Michael T. Parker (docket entry 25), and on the petitioner's objections thereto (docket entry 27). Being fully advised in the premises, the Court finds as follows: On November 12, 2002, the petitioner, Eric Peagler, was sentenced in the United States District Court for the Middle District of Alabama to serve a term of 168 months on a conviction of Conspiracy to Distribute Cocaine and Possess and with the Intent to to run

Distribute

Cocaine,

Base

Marijuana,

consecutively with the petitioner's state sentences. On June 3, 2003, the petitioner was incorrectly designated and transferred to a federal correctional institution before he had completed service of his state sentences. After federal officials

learned of the mistake, Peagler was transferred to state custody to serve his state sentences and a federal detainer was issued. On

June 15, 2004, Peagler finished serving his state sentences and began serving his federal sentence. He is currently incarcerated

at the Federal Correctional Complex in Yazoo City, Mississippi.

In his petition, Peagler alleges that he should "be given a nunc pro tunc designation allowing him to serve a portion of his federal sentence while he was previously in state custody,"

pursuant to 18 U.S.C. § 3621(b). He seeks a court order compelling the Bureau of Prisons (BOP) to consider him for nunc pro tunc designation to the custody of the State of Alabama for service of his federal sentence, so that he will receive credit against his federal sentence starting from the day it was imposed (November 12, 2002). In a thorough and well reasoned Report and Recommendation, Magistrate Judge Parker states that a decision to designate a facility as a place of federal detention, pursuant to 18 U.S.C. § 3621(b), is "plainly and unmistakably within the BOP's discretion and we cannot lightly second guess a deliberate and informed determination by the agency charged with administering federal prison policy." (quoting Abdul-Malik v. Hawk-Sawyer, 403 F.3d 72, 75 (2nd Cir. 2005). consideration" to In this case, the BOP, after "full and fair the petitioner's request, determined that

Peagler's federal sentence was imposed to run consecutive to his state sentences and, therefore, a nunc pro tunc designation to permit his federal sentence to run concurrently with his Alabama sentence was not appropriate. discretion, petitioner's and will not do be This matter was within the BOP's disturbed persuade by the this Court. The

objections

not 2

Court

otherwise.

Accordingly, IT IS HEREBY ORDERED that the Report and Recommendation of United States Magistrate Judge Michael T. Parker (docket entry 25) is hereby adopted as the finding of this Court, and the

petitioner's objections thereto (docket entry 27) are denied; FURTHER ORDERED that the petitioner's petition is dismissed. A separate judgment will be entered in accordance with Rule 58 of the Federal Rules of Civil Procedure, dismissing this action with prejudice. SO ORDERED, this the 2nd day of April, 2010.

/s/ David Bramlette UNITED STATES DISTRICT JUDGE

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