Gill v. Coakley
Filing
30
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 26 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND GRANTING RESPONDENT'S 20 MOTION TO DISMISS. This case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/25/18. (Pro Se Petitioner via CM/rrr) (lmm) (Additional attachment(s) added on 6/25/2018: # 1 Certified Mail Return Receipt) (lmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RAYMOND EDWARD GILL,
Petitioner,
v.
Civil Action No. 5:17CV36
(STAMP)
JOE COAKLEY, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE AND
GRANTING RESPONDENT’S MOTION TO DISMISS
I.
The
pro
se1
Background
petitioner,
a
federal
inmate
housed
at
FCI
Hazelton, filed a petition for habeas corpus pursuant to 28 U.S.C.
§ 2241.
ECF No. 1.
This case arises out of a dispute over whether
the United States Parole Commissioner had the authority to lodge a
detainer for a sentence imposed on the petitioner in 1981.
ECF No.
1 at 6.
In the petition, the petitioner alleges that the United States
Parole Commissioner “illegally resurre[c]ted” a sentence imposed on
him in 1981 when the Parole Commissioner issued a parole violator
warrant lodged as a detainer for the petitioner’s 1981 sentence on
July 9, 2015.
ECF No. 1 at 6.
The petitioner appears to argue that
the 1981 sentence had already been fully served, and therefore, the
1
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).
Commissioner acted illegally by placing the detainer.
7.
ECF No. 1 at
The petitioner further argues that the detainer must be removed
and the underlying case must be closed because the detainer “hampers
his custody level, programs and release.”
ECF No. 1 at 7.
The respondent, the Warden of FCI Hazelton, filed a motion to
dismiss.
ECF No. 20.
In the respondent’s memorandum in support,
respondent argues that, first, the 1981 sentence did not “expire”
because each time petitioner’s parole was revoked for new criminal
conduct, the petitioner’s time on parole was forfeited pursuant to
18 U.S.C. § 4210(b)(2).
ECF No. 21 at 3.
Second, the respondent
argues that the petitioner’s custody status has not been adversely
affected by the detainer.
ECF No. 21 at 4.
has not raised a viable claim.
Thus, the petitioner
ECF No. 21 at 4.
Third, the
respondent further argues that, even if the petitioner has raised
a viable claim, the detainer was withdrawn on October 23, 2017.
Therefore, the respondent asserts that the petition is now moot and
should be dismissed.
ECF No. 21 at 4.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Prisoner
Litigation 2, this case was referred to United States Magistrate
Judge Robert W. Trumble.
The magistrate judge entered a report and
recommendation. ECF No. 26. In that recommendation, the magistrate
judge recommended that the respondent’s motion to dismiss be granted
and the petitioner’s § 2241 petition be dismissed with prejudice.
ECF No. 26 at 8. The magistrate judge recommended that the petition
2
be dismissed on two grounds.
First, the magistrate judge agreed
with the respondent’s argument that the petitioner forfeited his
time on parole each time the petitioner’s parole was revoked for
criminal conduct. ECF No. 26 at 6. The magistrate judge found that
when the petitioner was last released on parole, he had 3,447 days
remaining on his original sentence, and thus the Commission was
within its authority to issue the detainer.
magistrate
judge
concluded
that,
ECF No. 26 at 6.
“[t]herefore,
petition fails to state a claim for relief.”
as
filed,
The
the
ECF No. 26 at 7.
Second, the magistrate judge agreed with the respondent that the
petition became moot when the detainer was withdrawn.
at 7.
ECF No. 26
Thus, the magistrate judge found that the Court should
dismiss the case as moot.
ECF No. 26 at 8.
Accordingly, the
magistrate judge recommended that the respondent’s motion to dismiss
be granted and the petitioner’s § 2241 petition be dismissed with
prejudice.
ECF No. 26 at 8.
The petitioner timely filed objections.
ECF No. 27.
In his
objections, the petitioner does not address the argument that his
parole time was lost when parole was revoked, nor the issue of
mootness. Instead, the petitioner challenges his current sentence.
The
petitioner
argues
that
by
“illegally
resurrect[ing]”
his
original sentence, he received a forty-year sentence (which he is
currently serving) because he came under the “Career Offender Act.”
3
ECF No. 27 at 1.
The petitioner contends that his sentence should
have been 55-60 months.
ECF No. 27 at 1.
The respondent filed a response to the petitioner’s objections.
The respondent argues that challenges to the petitioner’s current
sentence “must normally be raised on appeal, or raised by filing a
[28 U.S.C.] § 2255 motion in the sentencing court.”
at 1.
ECF No. 29
Further, the respondent argues that the petitioner cannot
meet the narrow requirements to show that a § 2255 remedy would be
inadequate or ineffective.
ECF No. 29 at 2.
For the reasons that follow, this Court finds that the report
and recommendation of the magistrate judge should be adopted in its
entirety.
II.
Applicable Law
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made.
However, portions of the
report and recommendation which are not objected to will be upheld
unless they are “clearly erroneous or contrary to law.”
28 U.S.C.
§ 636(b)(1)(A). This Court has conducted a review of the record and
the petitioner’s objections. This Court finds that the petitioner’s
objections relate only to his current sentence and are in no way
related to the magistrate judge’s recommendation.
This Court does
not need to conduct a de novo review “when a party makes general and
conclusory objections that do not direct the court to a specific
4
error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Because the
petitioner did not object to any portion of the magistrate judge’s
report and recommendation, this Court finds that no portion of the
report and recommendation requires a de novo review. Therefore, the
magistrate judge’s findings and recommendations will be upheld
unless they are “clearly erroneous or contrary to law.”
28 U.S.C.
§ 636(b)(1)(A).
III.
Discussion
In the report and recommendation, the magistrate judge found
that the United States Parole Commission was within its authority
to issue a detainer because the petitioner’s time spent on parole
was forfeited when his parole was revoked for committing a new
offense.
ECF No. 26 at 6.
See 28 C.F.R. § 2.52(c)(2); Harris v.
Day, 649 F.2d 755 (10th Cir. 1981).2
Further, the magistrate judge
found that the petition is now moot because the petitioner received
the remedy he sought when the Commission withdrew the detainer. ECF
No. 26 at 7. Thus, the magistrate judge concluded that the petition
should be dismissed because there is no further relief this Court
2
“It is the Commission’s interpretation of 18 U.S.C.
4210(b)(2) that, if a parolee has been convicted of a new offense
committed subsequent to his release on parole, which is punishable
by any term of imprisonment, detention, or incarceration in any
penal facility, forfeiture of time from the date of such release to
the date of execution of the warrant is an automatic statutory
penalty, and such time shall not be credited to the service of the
sentence.”
5
can provide.
ECF No. 26 at 7-8.
This Court finds no clear error
in the determinations of the magistrate judge and thus affirms and
adopts the report and recommendation.
IV.
This
Court
objections.
conclusory
has
Conclusion
reviewed
the
record
and
the
petitioner’s
Because the petitioner’s objections are general and
in
nature
and
do
not
relate
to
the
report
and
recommendation, which specifically addresses mootness and forfeiture
of time on parole, this Court has reviewed the magistrate judge’s
report and recommendation under a clearly erroneous standard of
review.
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 and the respondent’s motion to dismiss (ECF No. 20) is
GRANTED.
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 “[f]ailure to timely file
objections to this recommendation will result in waiver of the right
to
appeal
from
recommendation.”
a
judgment
of
this
Court
based
upon
such
ECF No. 26 at 8 (emphasis added) (citations
6
omitted). The failure to file objections specific to the report and
recommendation after receiving notice waives the right to appeal.
Brooks v. Padulah, 407 F. App’x 706, 707 (4th Cir. 2011).
Because
the petitioner has failed to raise an objection specific to the
report and recommendation, the petitioner 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 memorandum
opinion and order to counsel of record herein and to the pro se
petitioner by certified mail.
Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:
June 25, 2018
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
7
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