Profitt v. Perdue

Filing 29

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The report and recommendation of the magistrate judge 26 is hereby AFFIRMED and ADOPTED in its entirety. The petitioners petition for writ of habeas corpus under 28 U.S.C. § 2241 1 is DENIED. The respondents motion to dismiss or for summary judgment 14 is GRANTED and the petitioners motion for default summary judgment 17 is DENIED. this case is DISMISSED WITH PREJUDICE and STRICKEN fro m the active docket of this Court. Appeal rights noted. The clerk is directed to enter judgment. Signed by Senior Judge Frederick P. Stamp, Jr on 5:13-cv-147. (c to pro se petitioner by cert mail) (cc) Modified on 6/5/2014 to correct typo(cc). (Additional attachment(s) added on 6/5/2014: # 1 Certified Mail Return Receipt) (cc).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
SHANE PROFITT,
Petitioner,
v.

Civil Action No. 5:13CV147
(STAMP)

R.A. PERDUE,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

On October 24, 2013, the pro se1 petitioner, Shane Profitt
(“Profitt”), initiated this 28 U.S.C. § 2241 habeas corpus action.
In his petition for habeas corpus, Profitt argues that the Federal
Bureau of Prisons (“BOP”) has miscalculated his sentence and
requests that he receive credit against his federal sentence for
time spent in an Ohio State Department of Corrections facility
(“Ohio State Corrections”).

The action was referred to United

States Magistrate Judge John S. Kaull for initial review and report
and recommendation pursuant to Local Rule of Prisoner Litigation
Procedure 2.
On March 8, 2007, the petitioner pleaded guilty in the United
States District Court for the Southern District of Ohio (“SDOH
court”) to one count of Conspiracy to Possess with Intent to

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 1999).

Distribute two controlled substances, cocaine in excess of five
kilograms and Methylenedioxymethamphetamine (“MDMA” or “Ecstacy”),
pursuant to 21 U.S.C. § 846.

At the time of the petitioner’s plea,

he was being held by the Ohio State Corrections and had two pending
state cases, one in Montgomery County, Ohio and one in Hamilton
County, Ohio.

The petitioner had not been sentenced for either.

The petitioner was later sentenced to 120 months imprisonment by
the SDOH court.
After

the

petitioner

received

his

federal

sentence,

the

Montgomery court imposed a three year sentence that had previously
been suspended while the petitioner was on probation and a one year
sentence for attempt to commit felonious assault, to be served
concurrently.

The Montgomery court ordered those sentences to be

served concurrently with the federal sentence and concurrently with
the sentence imposed by the Hamilton court.

Thereafter, the

petitioner was sentenced by the Hamilton court to a four year
sentence to be served concurrently with any pending sentences.
However, in 2010, the Hamilton court modified the petitioner’s
sentence from a four year sentence to a total aggregate sentence of
two and a half years providing the petitioner with a 345 day
credit, which the BOP later applied to his federal sentence.
The petitioner has made multiple requests for a concurrent
sentence recommendation, one of which was to the SDOH court. As to
that

request,

petitioner’s

the

SDOH

request

but

court

entered

making

2

a

an

order

denying

recommendation

that

the
the

petitioner’s 120 month federal sentence run concurrently with his
now discharged state sentences.

This order was entered after the

current petition was filed in this Court.
After the current petition was filed, the respondent filed a
motion to dismiss or for summary judgment and the petitioner filed
a response to that motion.

Further, the petitioner filed a motion

for summary judgment. However, while the petition and those motions
were pending consideration by the magistrate judge, this Court
received a letter from the SDOH with an enclosed BOP letter stating
that the petitioner’s requested relief had been granted.
Thereafter, Magistrate Judge Kaull issued his report and
recommendation in this case recommending that this Court deny the
plaintiff’s § 2241 petition and dismiss this action with prejudice,
grant the respondent’s motion for summary judgment, and deny the
petitioner’s motion for summary judgment.

The magistrate judge

informed the parties that if they objected to any portion of the
report and recommendation, they were required to file written
objections within 14 days after being served with copies of the
report.

Neither party filed objections.
II.

Discussion

As there were no objections filed to the magistrate judge’s
recommendation, the findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”
§ 636(b)(1)(A).

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28 U.S.C.

In

his

report,

the

magistrate

petitioner’s request was moot.

judge

found

that

the

The magistrate judge indicated in

his report that a check of the BOP website showed that the
petitioner’s projected release date was June 5, 2015, although it
had previously been June 1, 2017. Thus, the magistrate judge found
that the relief requested by the petitioner had already been
granted. This Court finds that the magistrate judge’s findings
should

be

adopted

as

the

petitioner’s

request

is

moot.

The

magistrate judge’s recommendations are not clearly erroneous or
contrary to law as the BOP letter this Court received via the SDOH
court confirms that the petitioner’s request for a modification of
his federal sentence to run concurrently has been granted by the
BOP.
III.

Conclusion

Because the parties have not objected to the report and
recommendation of the magistrate judge, and because this Court
finds that the magistrate judge’s recommendation is not clearly
erroneous, the report and recommendation of the magistrate judge
(ECF No. 26) is hereby AFFIRMED and ADOPTED in its entirety.
Accordingly, the petitioner’s petition for writ of habeas corpus
under 28 U.S.C. § 2241 (ECF No. 1) is DENIED.

Additionally, the

respondent’s motion to dismiss or for summary judgment (ECF No. 14)
is GRANTED and the petitioner’s motion for default summary judgment
(ECF No. 17) is DENIED.

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It is further ORDERED that this case be DISMISSED WITH
PREJUDICE and STRICKEN from the active docket of this Court.
Finally, this Court finds that the petitioner was properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.

Because the petitioner has failed to

object, he has waived his right to seek appellate review of this
matter.

See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.

1985).
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to the
pro se petitioner by certified mail and to counsel of record
herein.

Pursuant to Federal Rule of Civil Procedure 58, the Clerk

is directed to enter judgment on this matter.
DATED:

June 5, 2014

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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