McQueen v. Odom
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 19 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE. The respondents 12 motion to dismiss, or in the alternative, for summary judgment is GRANTED and the petitioners petition is DENIED and his c laim DISMISSED WITH PREJUDICE. Because the petitioner has failed to object, he has waived his right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/29/2015. (copy to Pro Se Petitioner via CM,rrr; copy to counsel of record via CM/ECF) (nmm) (Additional attachment(s) added on 6/29/2015: # 1 Certified Mail Return Receipt) (nmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BRIAN DEAN McQUEEN,
Civil Action No. 5:15CV1
WILLIAM ODOM, Warden,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
The petitioner, a federal inmate proceeding pro se,1 filed a
writ of habeas corpus under 28 U.S.C. § 2241 (“§ 2241”).
After receiving an order to show cause, the respondent2 filed
a motion to dismiss, or in the alternative, a motion for summary
ECF No. 12.
United States Magistrate Judge John S.
Kaull then filed a notice under Roseboro v. Garrison, 528 F.2d 309,
310 (4th Cir. 1975).
ECF No. 15.
That notice informed the
respondent’s motion, and that failure to respond could result in
the entry of an order of dismissal against him.
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
The magistrate judge correctly points out that the warden of
FCI Hazelton, which is where the petitioner is incarcerated, is
Leonard Oddo, not “William Odom.”
that notice over three months ago, the petitioner has yet to
Finding no response by the petitioner, the magistrate
recommends that the petitioner’s petition be denied and that his
claim be dismissed with prejudice.
ECF No. 19.
magistrate judge informed the petitioner of the deadline for filing
objections to the report and recommendation, the petitioner did not
file any objections.
For the reasons set forth below, the report
and recommendation of the magistrate judge is affirmed and adopted.
The petitioner was arrested in 1992 on charges of attempted
capital murder, burglary of a habitation, and aggravated robbery.
He was then sentenced in Chambers County, Texas to three concurrent
life sentences for those state charges.
Later, in June 1993, the
Commonwealth of Kentucky issued a warrant for a parole violation,
and that was lodged as a detainer with the Texas Department of
In February 1994, the petitioner was transferred to
federal custody under a writ of habeas corpus ad prosequendum, but
still continued to serve his state sentence.
In May 1994, the
United States District Court for the Middle District of Florida
submitting fraudulent claims for income tax refunds to the Internal
Following that sentence, the petitioner returned
to the Texas Department of Corrections, and his federal judgment
was lodged as a detainer.
In May 2014, the petitioner was released under parole in
Texas, and later transferred to Kentucky pursuant to the detainer
for the parole violation that occurred in June 1993. Then, in June
2014, the petitioner was released under parole in Kentucky, but
remanded to the custody of the United States Marshals Service to
serve his federal sentence, which was imposed in May 1994.
In his § 2241 petition, the petitioner argues that he spent
175 days under state custody, which should be credited towards his
More specifically, the petitioner is referring
to a period of pretrial custody that occurred when he was first
sentenced in Texas between June 23, 1992 and December 15, 1992.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made.
objections were filed, all findings and recommendations will be
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).
As the Supreme Court of the United States
stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
As stated above, the petitioner did not file objections to the
report and recommendation, which means that the findings of the
magistrate judge will be upheld unless those findings are clearly
erroneous. After reviewing those findings, this Court is not “left
with the definite and firm conviction that a mistake has been
United States Gypsum Co., 333 U.S. at 395.
As the magistrate judge correctly points out, 18 U.S.C.
§ 3585(a) determines when a prisoner’s sentence commences.
that statute, a sentence of imprisonment begins “on the date the
defendant is received in custody awaiting transportation to, or
official detention facility at which the sentence is to be served.”
18 U.S.C. § 3585(a) (2012).
A prisoner may receive credit towards
his term of imprisonment for being in official detention before the
sentence commences, subject to certain conditions.
See id. at
Also, that assumes that such credit has not been
applied against another sentence.
In addition to the above
statute, the Bureau of Prison’s Program Statement 5880.28 (“Program
Statement 5880.28”) governs the calculation of a petitioner’s
Program Statement 5880.28 states in relevant part that
“[i]f the prisoner is serving no other federal sentence at the time
the sentence is imposed, and is in exclusive federal custody
[meaning not under a writ of habeas corpus ad prosquendum] . . .
the sentence commences on the date of imposition, even if a state
sentence is running along concurrently.” (emphasis in original).
The facts show that the petitioner’s state sentences began on
June 21, 1992.
He was then transferred into federal custody for
his federal charges in February 1994.
The District Court in
Florida ordered that his federal sentence run consecutively to his
Texas sentence. On June 20, 2014, which is when the petitioner was
released on parole by Texas and later Kentucky, he was remanded to
federal custody to begin his federal sentence.
When he was
remanded, the petitioner was under exclusive federal custody. That
means his federal sentence began on June 20, 2014, and could not
have began in 1992, which the petitioner appears to assert.
Further, his federal sentence was imposed as running consecutive to
his Texas sentence, meaning that the federal sentence could not
have started until his Texas sentence ended.
In addition to the
requirements under Program Statement 5880.28, 18 U.S.C. § 3585(b)
limits any credit toward a term of imprisonment to situations where
that credit of time has not been applied against another sentence.
See, e.g., United States v. Goulden, 54 F.3d 774, *2 n.3 (4th Cir.
In this case, the petitioner already received
credit towards his Texas sentence for 178 days.
See ECF No. 13 Ex.
2 (“The defendant, BRIAN DEAN MCQUEEN, is given credit for 178 days
back time from the effective date of [his Texas sentence]”)(capital
letters in original).
The petitioner cannot attempt to receive
double credit for his detention time. United States v. Wilson, 503
U.S. 329, 337 (1992) (“Congress made clear that a defendant could
not receive a double credit for his detention time.”).
based upon the record and the law provided above, this Court is not
“left with the definite and firm conviction that a mistake has been
committed” regarding the findings of the magistrate judge.
recommendation of the magistrate judge is affirmed and adopted in
For the reasons set forth above, the report and recommendation
of the magistrate judge is AFFIRMED AND ADOPTED.
respondent’s motion to dismiss, or in the alternative, for summary
judgment (ECF No. 12) is GRANTED and the petitioner’s petition is
DENIED and his claim DISMISSED WITH PREJUDICE.
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
See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
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
Pursuant to Federal Rule of Civil Procedure 58, the Clerk
is DIRECTED to enter judgment on this matter.
June 29, 2015
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?