Brinson v. O'Brian

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that Magistrate Judge Aloi's 29 Report and Recommendation is ADOPTED; Respondent's 14 Motion to Dismiss or for Summary Judgment is DENIED. This Court GRANTS Petitioner's [1 ] Petition and hereby DIRECTS the BOP to recalculate the Petitioner's sentence to award him credit for the time spent in State custody after 9/23/1993 against the 87-month sentence imposed by the District of South Carolina and the 240-month sent ence imposed by the Western District of North Carolina. This Court further DIRECTS the Clerk to enter judgment in favor of the Petitioner and to STRIKE this case from the active docket. Signed by District Judge John Preston Bailey on 2/21/17. (Attachments: # 1 Certified Mail Return Receipt)(copy Petitioner, BOP&USP Hazelton)(cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
ROBERT KENNETH BRINSON,
Petitioner,
v.
CIVIL ACTION NO. 2:15-CV-62
(BAILEY)
TERRY O’BRIEN,
Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge Michael John Aloi [Doc.
29]. Pursuant to this Court’s Local Rules, this action was referred to Magistrate Judge Aloi
for submission of a proposed report and a recommendation (“R&R”). Magistrate Judge Aloi
filed his R&R on January 26, 2017, wherein he recommends this Court grant the
petitioner’s § 2241 petition.
Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo
review of those portions of the magistrate judge’s findings to which objection is made.
However, the Court is not required to review, under a de novo or any other standard, the
factual or legal conclusions of the magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). In addition, failure to file timely objections constitutes a waiver of de novo
review and the right to appeal this Court's Order. 28 U.S.C. § 636(b)(1); Snyder v.
Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91,

94 (4th Cir. 1984). Here, objections to Magistrate Judge Aloi’s R&R were due within
fourteen (14) days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
The docket reflects that service was accepted by the petitioner on January 30, 2017 [Doc.
10]. The petitioner timely filed his Objections on February 13, 2017 [Doc. 31].1 This Court
notes that the R&R is favorable to the petitioner. The respondent has failed to file any
objections. Accordingly, this Court will review the R&R for clear error.
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 29] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. The Respondent’s Motion to
Dismiss or for Summary Judgment [Doc. 14] is DENIED. Accordingly, this Court GRANTS
the petitioner’s Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. 1].
Accordingly, for the reasons thoroughly set out in the R&R, this Court hereby directs the
BOP to recalculate the petitioner’s sentence to award him credit for the time spent in State
custody after September 23, 1993 against the 87-month sentence imposed by the District
of South Carolina and the 240-month sentence imposed by the Western District of North
Carolina. This Court further DIRECTS the Clerk to enter judgment in favor of the petitioner
and to STRIKE this case from the active docket of this Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to the BOP and any counsel

1

This Court notes the petitioner’s filing does not actually seek any relief or make
any specific objections. Rather, petitioner requests clarification of portions of the R&R. As
the petitioner has received the requested relief, this Court finds it unnecessary to attempt
to further interpret the R&R or simplify the reasoning contained therein.
2

of record and to mail a copy to the pro se petitioner.
DATED: February 21, 2017.

3