Thomas v. United States of America

Filing 16

ORDER: The Court hereby ORDERS that Magistrate Judge Dancks' # 15 Report-Recommendation and Order is ADOPTED in its entirety for the reasons set forth herein; and the Court further ORDERS that the petition (Dkt. No. 1 ) be DENIED and DISMISSED. Signed by U.S. District Judge Mae A. D'Agostino on 9/8/2021. (Copy served via regular mail)(meb)

Case 9:18-cv-00430-MAD-TWD Document 16 Filed 09/08/21 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
GREGORY THOMAS,
Petitioner,
vs.

9:18-cv-00430
(MAD/TWD)

WARDEN FCI RAY BROOK,
Respondent.
____________________________________________
APPEARANCES:

OF COUNSEL:

GREGORY THOMAS
13366-052
Ray Brook, Federal Correctional Institution
P.O. Box 900
Ray Brook, New York 12977
Petitioner, pro se
OFFICE OF THE UNITED STATES
ATTORNEY - SYRACUSE
100 South Clinton Street, Suite 900
Syracuse, New York 13261
Attorneys for Respondent

EMER M. STACK, AUSA

Mae A. D'Agostino, U.S. District Judge:
ORDER
Petitioner Gregory Thomas, an inmate at the Federal Correctional Institution ("FCI") in
Ray Brook, New York, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2241 on April 9, 2018. See Dkt. No. 1. Plaintiff alleges that the Federal Bureau of Prisons
("BOP") improperly denied him credit toward his federal sentence for time spent in state custody.
See Dkt. No. 1 at 3. On June 28, 2021, Magistrate Judge Dancks issued a ReportRecommendation and Order, recommending that Plaintiff's petition be denied and dismissed. See
Dkt. No. 15.
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Case 9:18-cv-00430-MAD-TWD Document 16 Filed 09/08/21 Page 2 of 3

"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). The Second Circuit has held that the court is obligated to "'make reasonable allowances
to protect pro se litigants'" from inadvertently forfeiting legal rights merely because they lack a
legal education. Govan, 289 F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d
Cir. 1983)).
Plaintiff has not filed an objection to the Report-Recommendation and Order. When a
party declines to file an objection, the court reviews a recommendation for clear error. See
McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). After the appropriate review,
"the court may accept, reject or modify, in whole or in part, the findings or recommendations
made by the magistrate [judge]." 28 U.S.C. § 636(b)(1). Because the Plaintiff has not filed an
objection, the Court will review the recommendation for clear error.
In the present matter, the Court finds that Magistrate Judge Dancks correctly determined
that the petition must be denied and dismissed. Petitioner cannot receive credit toward his federal
sentence for the same period of time that was credited toward a state sentence. United States v.
Wilson, 503 U.S. 329, 333, 337 (1992). Magistrate Judge Dancks correctly noted that the period
of time between August 2, 2005 and May 27, 2007 was credited to Petitioner's state sentence, and
therefore could not be credited to his federal sentence. Dkt. No. 15 at 8-10.
To the extent Petitioner also seeks review of the denial of a nunc pro tunc designation for
the state prison as a place of federal confinement, Magistrate Judge Dancks correctly ruled that
the BOP did not abuse its discretion in its denial. The BOP may grant the request for the
retroactive designation of the non-federal prison as the institution for service of the federal

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Case 9:18-cv-00430-MAD-TWD Document 16 Filed 09/08/21 Page 3 of 3

sentence, pursuant to 18 U.S.C. § 3621(b). "The [BOP's] decision regarding nunc pro tunc
designation is reviewed for abuse of discretion." Jennings v. Schult, 377 Fed. Appx. 97, 98 (2d
Cir. 2010).
The Court agrees with Magistrate Judge Dancks that the BOP did not abuse its discretion
in denying the nunc pro tunc designation. The BOP contacted the federal sentencing judge, Judge
Mordue, and adequately considered the factors in 18 U.S.C. § 3621(b) before issuing its denial.
See Dkt. No. 5-1 at ¶ 12; Dkt. No. 5-12.
After carefully reviewing the Report-Recommendation and Order, the entire record in this
matter, and the applicable law, the Court hereby
ORDERS that Magistrate Judge Dancks' Report-Recommendation and Order is
ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that the petition (Dkt. No. 1) be DENIED and DISMISSED; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 8, 2021
Albany, New York

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