Lindsay v. Atkinson

Filing 23

ORDER adopting 19 Report and Recommendation of Magistrate Judge Bruce Howe Hendricks; granting 10 Motion to Dismiss. Respondent's Motion to Dismiss (Dkt. No. 10) is construed as a motion for summary judgment and GRANTED. Petitioner's habeas petitions is DISMISSED with prejudice. A certificate of appealability is DENIED. Signed by Honorable Richard M Gergel on 2/14/2014.(ssam, )

IN THE UNITED STATES DISTRICT COUWJ1';": ",
DISTRICT OF SOUTH CAROLINA
l61q
CHARLESTON DIVISION
JOHNNY LIND SA Y,
Petitioner,
vs.
KENNY ATKINSON, Warden,
Respondent.

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No. 2: 13-cv-1797-RMG
ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 19), recommending that Respondent's motion for summary judgment
be granted, For the reasons stated below, the Court ADOPTS the R & R in full. Accordingly,
Respondent's Motion to Dismiss (Dkt. No. 10) is construed as a motion for summary judgment
and GRANTED.

I. Back&:round
Petitioner filed this habeas action seeking to have certain jail time applied toward his
federal sentence. (Dkt. No.1). The Magistrate Judge construed Respondent's motion to dismiss
as a motion for summary judgment and recommended that the motion be granted and Petitioner's
habeas petition be dismissed. (Dkt. No. 19). Petitioner has not filed an objection to the R & R.

II. Le&:al Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28

U.S.C. § 636(b)(1). This Court is charged with making a de novo determination of those
portions of the R & R to which objection is made. Diamond v. Colonial Life & Ace. Ins. Co.,
416 FJd 310, 315 (4th Cir. 2005) (quoting 28 U.S.C. § 636(b)(1)); accord Fed. R. Civ. P. 72(b).
However, as is the case here, where no objections are made, this Court "must 'only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation.'" Id.
(quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in the absence of specific
objections to the R & R, the Court need not give any explanation for adopting the Magistrate
Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir.
1983).
III. Discussion
The Court has reviewed the parties' filings and the R & R, and concludes that the
Magistrate Judge correctly applied the relevant law to the operative facts in this matter. Because
the federal judgment against Petitioner does not indicate whether his federal sentence was to run
concurrently or consecutively with another sentence, it runs consecutively with the state sentence.
See 18 U.S.C. § 3584(a). The fact that the state court amended its sentence to state that it was to

run concurrently with the federal sentence does not alter the federal sentence. E.g., United States
v. Eccleson, 521 F.3d 1249, 1254 (10 Cir. 2008).
The period of April 28, 2009, through February 23, 2010, was credited toward
Petitioner's state sentence when it was originally imposed. (Dkt. No. 10-1 at 5). Therefore, it
cannot be credited toward Petitioner's federal sentence. See 18 U.S.C. § 3585(b). Petitioner's
amended state court sentence, which indicates that pre-sentence jail time should not be credited
to Petitioner's state sentence, "cannot be applied retroactively" because was entered after
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Petitioner had already served that sentence and was released on parole. See Dempsey v. Smith,
No. 9:03-cv-2890, 2004 WL 3317661 at *4 (D.S.C. Sept. 27,2004).
Therefore, the Court ADOPTS in full the Magistrate Judge's Report and
Recommendation (Dkt. No. 19) as the order of this Court. Accordingly, Respondent's Motion to
Dismiss (Dkt. No. 10) is construed as a motion for summary jUdgment and GRANTED.
Petitioner's habeas petitions is DISMISSED with prejUdice.

Certificate of Appealability
The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c )(3) The certificate of appealability ... shall indicate which specific issue or
issues satisfY the showing required by paragraph (2).
28 U.S.c. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this Court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003); Slackv. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met. Therefore, a certificate of appealability is DENIED.
IT IS SO ORDERED.

United States District Judge

Februaryr~< 2014
Charleston, South Carolina

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