Humphrey v. Cruz
Filing
39
ORDER adopting 35 Report and Recommendation. It is ORDERED that respondent's 18 Motion for summary judgment is GRANTED, and the 1 petition is DENIED. Signed by Honorable Bruce Howe Hendricks on 3/17/15. (kmca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Daryl Deshaun Humphrey,
) Civil Action No.: 8:14-718-BHH
)
Petitioner, )
)
v.
)
OPINION AND ORDER
)
A. Cruz, Warden FCI Williamsburg,
)
)
Respondent. )
__________________________________ )
The petitioner Daryl Deshaun Humphrey (“the petitioner” or “Humphrey”), a federal
prisoner proceeding pro se, filed this writ of habeas corpus pursuant to 28 U.S.C. § 2241.
(ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, D.S.C., the
action was referred to United States Magistrate Judge Jacquelyn D. Austin for pretrial
handling and a Report and Recommendation. Magistrate Judge Austin recommends that
the motion for summary judgment filed by the respondent, A. Cruz (the “respondent”) be
granted and the petition be denied. (ECF No. 35.) The Report and Recommendation sets
forth in detail the relevant facts and standards of law on this matter and the Court
incorporates them without recitation.
BACKGROUND
The petitioner filed this action against the respondent on March 3, 2014, 1 alleging
that the Bureau of Prisons (BOP) has incorrectly calculated his sentence by failing to give
him a 42-month prior custody credit to which he is entitled. On January 22, 2015, the
1
This filing date reflects that the envelope containing the petition was stamped as having
been received on March 3, 2014, by the FCI/SCP Williamsburg mailroom. (ECF No.1-3.)
Houston v. Lack, 487 U.S. 266 (1988) (holding prisoner's pleading is considered filed when
given to prison authorities for forwarding to the district court).
Magistrate Judge issued a Report and Recommendation recommending that the
respondent’s motion for summary judgment be granted and the petition be denied. (ECF
No. 35 at 16.) On February 2, 2015, the plaintiff filed Objections. (ECF No. 36.)
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the court. The
recommendation has no presumptive weight.
The responsibility to make a final
determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct.
549, 46 L.Ed.2d 483 (1976). The court is charged with making a de novo determination
of those portions of the Report and Recommendation to which specific objection is made,
and the court may accept, reject, or modify, in whole or in part, the recommendation of the
Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
However, the court need not conduct a de novo review when a party makes only “general
and conclusory objections that do not direct the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th
Cir.1982). In the absence of a timely filed, specific objection, the Magistrate Judge's
conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
DISCUSSION
As noted above, the petitioner filed objections to the Magistrate Judge's Report and
Recommendation, accordingly, the Court has conducted a de novo review of the Report
and Recommendation and the record as a whole. The petitioner’s objections provide no
basis for this Court to deviate from the Magistrate Judge's recommended disposition.
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The Magistrate Judge recommended granting the respondent’s motion for summary
judgment because the petitioner has not shown that BOP’s calculation of his sentence is
incorrect. The petitioner argues that his sentencing judge intended for him to receive 42
months of credit served, which BOP has refused to grant him. However, as the Magistrate
Judge correctly observed, Congress has delegated the task of calculating credits for time
served to the Attorney General, as opposed to the sentencing Judge. The petitioner’s
sentencing judge indicated as much when he advised the petitioner that BOP would be the
one to determine what period of time qualified as time served. “The Court will recommend
that you receive 42 months of sentence credits for the time that you have been
incarcerated on this offense. Now, part of that was by local authorities, and that going to
be completely up to the Bureau of Prisons. Do you understand that?” (See Transcript,
ECF No. 1-1 at 5.) While the sentencing judge may have believed or hoped that the
petitioner would receive credit for the 42 months, he made it explicitly clear that this was
determination that would have to be made by BOP.
The petitioner has not directed the Court to any error in BOP’s calculation of his
sentence. Indeed, as the Magistrate Judge explained, it appears that BOP’s calculation
is compelled by the application of the governing law to the clear facts of this case. See,
e.g., United States v. Lytle, 565 F. App'x 386, 392 (6th Cir.) cert. denied, 135 S. Ct. 262,
190 L. Ed. 2d 195 (2014) (“[A]t the time of sentencing in the instant federal case, Lytle’s
state-court sentence had yet to expire and he was therefore continuing to receive credit
against his state sentence. Time which has been credited towards service of a state
sentence may not be ‘double counted’ against a federal sentence.”). The 42 months for
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which the petitioner is seeking credit were served because the petitioner violated his
probation stemming from a prior conviction. Since the petitioner received credit toward a
separate sentence, BOP correctly determined that he is not entitled to the credit he seeks
here.
The Court also agrees with the Magistrate Judge’s conclusion that, to the extent the
petitioner is seeking credit for his prior state sentences pursuant to USSG § 5G1.3(b), this
allegation should have been brought under 28 U.S.C. § 2255.
Having carefully reviewed Plaintiff’s objections and having made a de novo review
of the Report and Recommendation and the record in this case, the Court finds that the
Magistrate Judge fairly and accurately summarized the facts and applied the correct
principles of law. Upon review, the Court finds that the plaintiff’s objections have no merit
and are hereby overruled.
CONCLUSION
For the reasons stated above and by the Magistrate Judge, the Court overrules the
petitioner’s objections and adopts and incorporates by reference the Magistrate Judge’s
Report and Recommendation in full. It is therefore ORDERED that respondent’s motion
for summary judgment (ECF No. 18) is GRANTED, and the petition is DENIED.
IT IS SO ORDERED.
s/Bruce Howe Hendricks
United States District Judge
March 17, 2015
Greenville, South Carolina
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