Smith v. Federal Bureau of Prisons et al

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS adopting 15 Report and Recommendations. After reviewing the record, the Court finds that Judge Maas's well-reasoned Report is not facially erroneous. Accordingly, the Court adopts the Report in its entirety and, for the reasons set forth therein, denies the Petition. The Clerk of Court is respectfully directed to close this case. (Signed by Judge Richard J. Sullivan on 5/20/2013) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDS SDNY
DOCUMENT
ELECTRONlCALLY FILED

DOC#: ______________
DALE FILED: 5-2 i ­ ' :>

JOHN SMITH,
Petitioner,
-v-

No. 11 Civ. 8825 (RJS) (FM)

ORDER ADOPTING REPORT AND

RECOMMENDATION

FEDERAL BUREAU OF PRISONS, et at.,
Defendants.

RICHARD 1. SULLIVAN, District Judge:
Petitioner John Smith I brings this action pursuant to 28 U .S.C. § 2241, challenging the
execution of two concurrent sentences that were imposed by the United States District Court for
the Eastern District of New York but which he is serving in this district. Specifically, Petitioner
asserts that he was entitled to receive credit against his current sentences for time that he
previously spent in prison because the conduct underlying all of the offenses of conviction is the
same.

Petitioner initiated this action by filing his Petition for a Writ of Habeas Corpus (the

"Petition") on December 5, 2011. By Order dated December 19,2011 , this matter was referred
to the Honorable Frank Maas, Magistrate Judge.

Briefing on the Petition was completed on

February 17, 2012 and was submitted under seal in order to protect Petitioner's identity. On July
3, 2012, Judge Maas issued a Report and Recommendation (the "Report) recommending that the
Petition be denied because the Bureau of Prisons correctly applied the governing statute, 18
U.S.C. § 3585(b), in calculating Petitioner's sentence. In the Report, Judge Maas advised the
parties that failure to file timely objections to the Report would constitute a waiver of those
objections. See 28 U.S.C. § 636(b)(1 )(C); Fed. R. Civ. P. neb). No party has filed objections to

I

Petitioner, who is in the federal Witness Security Program, brings this action pseudonymously.

the Report, and the time to do so has expired. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.
1993).
When no objections to a report and recommendation are made, the Court may adopt the
report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F.
Supp. 2d 250, 253 (S.D.N.Y. 2005); La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y.
2000). After reviewing the record, the Court finds that Judge Maas's well-reasoned Report is not
facially erroneous. Accordingly, the Court adopts the Report in its entirety and, for the reasons
set forth therein, denies the Petition. The Clerk of Court is respectfully directed to close this
case.
SO ORDERED.
Dated:

May 20, 2013
New York, New York

RICH
J. S
IVAN
UNITED STATES DISTRICT JUDGE

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