Richman v. Graham

Filing 26

ORDER AND OPINION RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report (DE 24) and incorporates it here by reference. It is, therefore, ORDERED that the Respondent's Motion for Summary Judgment (DE 12) is gran ted and the Petition is dismissed. Further, it is ORDERED that a certificate of appealability is denied because Petitioner has failed to make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Signed by Honorable Joseph Dawson, III on 3/7/2025. (agaz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Ulysses Richman,
Petitioner,
vs.
Warden Graham,
Respondent.

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Case No.: 9:24-1635-JD-MHC

ORDER AND OPINION

This matter is before the Court with the Report and Recommendation
(“Report”) of United States Magistrate Judge Molly H. Cherry (DE 24), made under
Local Civil Rule 73.02(B)(2) of the District of South Carolina concerning Respondent
Warden Graham’s (“Respondent” or “Warden Graham”) Motion to Dismiss or, in the
Alternative, for Summary Judgment (DE 12) seeking to dismiss Petitioner Ulysses
Richman’s (“Petitioner” or “Richman”) Section 2254 petition for habeas corpus. 1
A. Background
The Report sets forth the relevant facts and legal standards, which the Court
incorporates without a complete recitation. In any event, the Court provides this
summary as a brief background.
Petitioner is an inmate incarcerated at FCI Williamsburg in Salters, South
Carolina. (DE 1-1.) Petitioner is serving an aggregate term of imprisonment of 185

The recommendation has no presumptive weight, and the responsibility for making a
final determination remains with the United States District Court. See Mathews v. Weber,
423 U.S. 261, 270-71 (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. The
court may accept, reject, or modify, in whole or in part, the recommendation made by the
magistrate judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
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months, which began on December 1, 2014, and he has a projected release date of
September 25, 2028, via Good Conduct Time release. (DE 12-1.) The sentence is
composed of: (1) a 180-month term imposed on October 27, 2014, in the Middle
District of Florida, and (2) a 5-month consecutive term imposed on February 16, 2016,
by the Eastern District of Arkansas. (See Civil Action No. 2:13-cr-127-FTM-29DN
(M.D. Fla.); Civil Action No. 4:16-cr-00012-01 (E.D. Ark.).)
Petitioner filed the instant action on April 2, 2024, alleging that the Bureau of
Prisons (“BOP”) is misinterpreting the First Step Act (“FSA”) and has improperly
denied him time credits for EBRR Programming in light of the FSA. (DE 1-1.)2
Petitioner alleges that his sentences should be viewed separately for the purposes of
the FSA because he has both an eligible and an ineligible offense, and he asserts that
even if BOP aggregates his offenses, he has already served the sentence on his
ineligible offense. (DE 1-1 at 1–3.) Petitioner further asserts that the BOP’s actions
violate his constitutional rights under the Fifth and Eighth Amendments. (Id.)
Respondent does not dispute that prior to filing the instant case, Petitioner exhausted
his administrative remedies with the BOP. (DE 12 at 2; DE 12-1.)

The FSA provides, among other things, that eligible inmates who successfully
complete EBRR programming or productive activities earn time credits at a rate described
in the statute. 18 U.S.C. § 3632(d)(4). However, 18 U.S.C. § 3632(d)(4)(D) provides an
extensive list of offenses that render an inmate “ineligible to receive [FSA] time credits,” if
the inmate is “serving a sentence for a conviction” of any of the enumerated offenses. One of
those enumerated disqualifying offenses is “Section 1791, relating to providing or possessing
contraband in prison.” 18 U.S.C. § 3632(d)(4)(D)(xxix). (DE 24 at 6-7.)
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Respondent filed a Motion to Dismiss or, in the Alternative, for Summary
Judgment. 3 (DE 12.) Respondent argues that the § 2241 Petition should be dismissed
because: (1) Petitioner was properly deemed ineligible to earn FSA Time Credits, and
(2) Petitioner cannot establish his constitutional claims. (Id.) Petitioner filed a
Response in Opposition (DE 21), and Respondent filed a Reply. (DE 22.)
B. Report and Recommendation
On December 19, 2024, the Magistrate Judge issued the Report recommending
that Respondent’s Motion for Summary Judgment be granted and the Petition be
Dismissed. (DE 24.) The Report found that the BOP properly concluded that
Petitioner is ineligible to earn FSA time credits due to the § 1791 conviction. (DE 24
at 13.) Petitioner has not objected to the Report.
C. Legal Standard
In the absence of objections to the Report and Recommendation, this Court is
not required to give any explanation for adopting the recommendation. See Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Court must “only satisfy itself that there
is no clear error on the face of the record in order to accept the recommendation.”
Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

Respondent moved under Rules 12(b)(6) and 56 of the Federal Rules of Civil
Procedure. (DE 12.) Because the parties submitted, and the Magistrate Judge considered,
matters outside of the Petition, Respondent’s Motion has been treated as one for summary
judgment. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded by the court, the motion must be
treated as one for summary judgment under Rule 56.”).
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D. Conclusion
Since Petitioner has not objected, after a thorough review of the Report and
Recommendation and the record in this case, the Court finds no clear error on the
face of the record. Thus, the Court adopts the Report (DE 24) and incorporates it here
by reference.
It is, therefore, ORDERED that the Respondent’s Motion for Summary
Judgment (DE 12) is granted and the Petition is dismissed. Further, it is ORDERED
that a certificate of appealability is denied because Petitioner has failed to make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.

Florence, South Carolina
March 7, 2025

NOTICE OF RIGHT TO APPEAL
Petitioner is hereby notified that he has the right to appeal this order within sixty (60) days
from the date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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