Spicer v. Ebbert

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS HEREBY ORDERED that 15 Magistrate Judge Carlson's Report and Recommendation is adopted; 19 Spicer's Motion to Supplement is denied; Clerk directed to close this case. Signed by Honorable Matthew W. Brann on 4/24/19. (case closed)(lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DEONTE SPICER,

No. 4:17-CV-02324

Petitioner,

(Judge Brann)

v.

(Magistrate Judge Carlson)

WARDEN DAVID EBBERT,
Respondent.
ORDER
APRIL 24, 2019
Deonte Spicer, a federal inmate, filed this 28 U.S.C. § 2241 petition asserting
that the Bureau of Prisons (“BOP”) erroneously calculated his sentence and
projected release date.1 In February 2019, Magistrate Judge Martin C. Carlson
issued a Report and Recommendation recommending that this Court deny Spicer’s
§ 2241 petition because (1) Spicer failed to exhausted administrative remedies and
(2) the petition fails on its merits.2
Spicer filed timely objections to the Report and Recommendation.3 Spicer
first reiterates that the BOP improperly calculated his release date, as his sentences
should be served concurrently.4

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2
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Doc. 1.
Doc. 15.
Doc. 17; see also Doc. 19.
Doc. 17 at 1-2.

Second, Spicer argues that exhausting his

administrative remedies would be futile because his projected release date has
passed and because his petition fits within an exception to the exhaustion
requirement carved out by the United States Court of Appeals for the Third Circuit
in Woodall v. Fed. Bureau of Prisons, 432 F.3d 235, 239 n.2 (3d Cir. 2005).5
“If a party objects timely to a magistrate judge’s report and recommendation,
the district court must ‘make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.’”6
Regardless of whether timely objections are made, district courts may accept, reject,
or modify—in whole or in part—the magistrate judge’s findings or
recommendations.7
Upon de novo review of Magistrate Judge Carlson’s Report and
Recommendation, the Court finds no error in the conclusions that Spicer failed to
exhaust his administrative remedies and that Spicer’s petition fails on its merits. As
to Spicer’s assertion that exhausting administrative remedies would be futile because
his projected release date has passed, his projected release date is July 12, 2022; even
assuming that his 24-month revocation sentence should run concurrent to his other
sentence, his release date would be July 12, 2020, leaving Spicer with sufficient time

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Id. at 3-4.
Equal Emp’t Opportunity Comm’n v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017)
(quoting 28 U.S.C. § 636(b)(1)).
28 U.S.C. § 636(b)(1); Local Rule 72.31.

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to exhaust his administrative remedies. Moreover, Spicer fails to explain why
exhaustion could not have been accomplished after his sentencing in 2016, or in
2017 when he filed his first sentencing-related administrative grievance. As to
Spicer’s contention that he fits within the Woodall exception, Spicer does not
challenge the validity of a BOP regulation, but instead contends that his release date
was erroneously calculated and, thus, Woodall is inapplicable. Finally, the Court
agrees with Magistrate Judge Carlson that Spicer’s sentencing orders do not call for
any of the sentences to run concurrently, and the BOP therefore did not err in its
sentencing calculation.
Consequently, IT IS HEREBY ORDERED that:
1.

Spicer’s motion to supplement his objections (Doc. 19) is GRANTED;

2.

Magistrate Judge Martin C. Carlson’s Report and Recommendation
(Doc. 15) is ADOPTED;

3.

Spicer’s 28 U.S.C. § 2241 petition (Doc. 1) is DENIED; and

4.

The Clerk of Court is directed to CLOSE this case.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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