Patel v. Warden

Filing 14

ORDER: The Court ADOPTS the R&R (Dkt. No. 11) as the order of Court, and DISMISSES Petitioners petition without prejudice. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 8/1/22. (ltap, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Sharvil Patel,

)
)
Petitioner,
)
)
v.
)
)
Warden,
)
)
Respondents.
)
____________________________________)

Case No. 8:22-cv-2027-RMG
ORDER

This matter is before the Court on the Report and Recommendation (“R&R”) of the
Magistrate Judge (Dkt. No. 11) recommending that the Court summarily dismiss this action
without prejudice brought under 28 U.S.C. § 2241 challenging the Bureau of Prison’s calculation
of Petitioner’s jail time because of a failure to exhaust administrative remedies. Petitioner has not
filed an objection to the R & R.
I.

Background
Petitioner, a federal prisoner proceeding pro se, brings this petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2241 alleging that the has failed to properly calculate his Earned
Time Credits under the First Step Act. Petitioner asks the Court to order the BOP to immediately
apply Petitioner’s earned time credits to his sentence. Petitioner admits in his petition that he has
not exhausted all BOP administrative remedies.
II.

Legal Standards
a. Habeas Corpus Generally
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the

legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The
primary means of attacking the validity of a federal conviction and sentence is through a motion
pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is generally the
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proper method to challenge the computation or execution of a federal sentence. See United States
v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004); United States v. Miller, 871 F.2d 488, 489-90 (4th
Cir. 1989) (distinguishing between attacks on the “computation and execution of the sentence
rather than the sentence itself”).
b. Magistrate Judge’s Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261, 270–71 (1976). This Court is charged with
making a de novo determination of those portions of the Report and Recommendation to which
specific objection is made. Additionally, 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).
Where the plaintiff fails to file any specific objections, “a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (internal quotation omitted). Because Petitioner did not file objections to
the R&R, the R&R is reviewed for clear error.
III.

Discussion
The Court finds that the Magistrate Judge ably addressed the issues and correctly concluded

that Petitioner’s petition should be dismissed. First, the Magistrate Judge correctly found that
Petitioner had failed to exhaust his administrative remedies as required by applicable case law.
McClung v. Shearin, 90 F. App’x 444, 445 (4th Cir. 2004) (citing Carmona v. U.S. Bureau of
Prisons, 243 F.3d 629, 634 (2d Cir. 2001) and Little v. Hopkins, 638 F.2d 953, 953-54 (6th Cir.
1981)); Jaworski v. Gutierrez, 509 F. Supp. 2d 573, 577-78 (N.D.W. Va. 2007). Second, the

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Magistrate Judge also correctly determined that no reason existed for excusing Petitioner’s failure
to exhaust. McClung, 90 F. App’x at 445 (noting exhaustion may be excused upon a showing of
cause and prejudice); Dunkley v. Hamidullah, No. 6:06-cv-2139-JFA-WMC, 2007 WL 2572256,
at *2 (D.S.C. Aug. 31, 2007) (courts may also excuse exhaustion for discretionary reasons, such
as futility); (Dkt. No. 18 at 4-5) (correctly noting Petitioner “does not explain how this case turns
on a question of statutory construction or, relatedly, why the BOP cannot apply the statute in the
first instance”); 18 U.S.C. § 3621(h)(4) (expressly granting the BOP the discretion to implement
an incentive system prior to the 2022 deadline); see Brown v. Warden of FCI Williamsburg, No.
8:19-cv-00546-HMH-JDA, 2019 WL 1780747, at *8 (D.S.C. May 25, 2019) (considering similar
issues and finding that petitioner could not show that exhaustion would be futile because the BOP
should have the opportunity to consider this issue internally while it implements the First Step
Act’s requirements, before it is subjected to judicial scrutiny), report and recommendation
adopted, 2019 WL 1773382 (D.S.C. Apr. 23, 2019).
IV.

Conclusion
For the reasons set forth above, the Court ADOPTS the R&R (Dkt. No. 11) as the order of

Court, and DISMISSES Petitioner’s petition without prejudice.
AND IT IS SO ORDERED.

s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge

August 1, 2022
Charleston, South Carolina

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