Black v. Hudgins
ORDER ADOPTING REPORT AND RECOMMENDATION 16 . Respondent's Motion to Dismiss or for SummaryJudgment 12 is hereby GRANTED, and the § 2241 petition 1 is hereby DENIED and DISMISSED WITH PREJUDICE. Signed by District Judge John Preston Bailey on 2/17/2021. (ag)(pro se Petitioner CM rrr) (Additional attachment(s) added on 2/17/2021: # 1 Certified Mail Return Receipt) (ag).
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CIVIL ACTION NO. 5:20-CV-210
R. HUDGINS, Warden of FCI Gilmer,
ORDER ADOPTING REPORT AND RECOMMENDATION
The above-styled matter came before this Court for consideration of the Report and
Recommendation of United States Magistrate Judge Mazzone [Doe. 16]. Pursuant to this
Courts Local Rules, this action was referred to Magistrate Judge Mazzone for submission
of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his
R&R on January 29, 2021, wherein he recommends the respondent’s Motion to Dismiss
or for Summary Judgment [Doe. 12] be granted and the Petition for Habeas Corpus
Pursuant to 28 U.S.C.
2241 [Doe. 1] be denied and dismissed with prejudice. For the
reasons that follow, this Court will adopt the R&R.
The petitioner is a federal inmate incarcerated at FCI Gilmer in Glenville, West
Virginia. Petitioner, acting pro se, initiated this habeas corpus proceeding on September
28, 2020, pursuant to 28 U.S.C.
2241 challenging the validity of his sentence. The
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claims in the petition challenge the Bureau of Prisons’ (“BOP”) calculation of his sentence.
According to the BOP website, petitioner’s projected release date is February 13, 2028.
On October 4, 2012, petitioner was sentenced in the Eastern District of Michigan for
three counts of being a felon in possession of a firearm in violation of 18
924(e)(1); on each count, petitioner was sentenced to 300 months, with the
sentences to be served concurrently. United States v. Black, 2:10-CR-20225-SDD-PJK
(E.D. Mich.) [Doc. 1111. Following a habeas petition under 28 U.S.C.
was resentenced on January 31, 2017; at that time, petitioner was sentenced to 120
months of imprisonment on count 1, 66 months on count 2, and 66 months on count 3, to
be served consecutively. Id. [Doc. 173]. This resulted in an aggregate term of 252 months
of imprisonment, a term within the guideline range which was subsequently affirmed by the
Sixth Circuit. Id. [Doc. 180].
Essentially, petitioner’s argument in the instant petition is that because he was
initially sentenced to concurrent sentences, the time between his initial sentencing and his
resentencing is time which counts towards all three sentences; therefore, petitioner
contends that even though his sentences are now to run consecutively, that time must be
deducted from each of the three sentences. The government filed a response in which it
argues that the petition should be dismissed or, alternatively, that the Court should grant
summary judgment to respondent.
II. STANDARD OF REVIEW
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.
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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. Am, 474 U.S. 140,
150 (1985). Nor is this Court required to conduct a de novo review when the party makes
only ‘general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed findings and recommendations.” Orpiano
Johnson, 687 F.2d
44, 47 (4th Cir. 1982).
In addition, failure to file timely objections constitutes a waiverof 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). Prose filings must be liberally construed and held to a less stringent standard than
those drafted by licensed attorneys, however, courts are not required to create objections
where none exist. Haines v. Kemner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574
F.2d 1147, 1151 (4th Cir. 1971).
Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)
days of the date of service. On February 11,2021, the petitioner timely filed his Objections
[Doc. 18]. Accordingly, this Court will review those portions of the R&Rto which objection
was filed under a de novo standard of review. The remainder of the R&R will be reviewed
for clear error.
In the R&R, the magistrate judge found that “despite the petitioner’s vehement
argument that the BOP has calculated his resentence incorrectly, the same is simply not
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true.” [Doc. 16 at 8]. The R&R clearly lays out the calculation of petitioner’s 252 month
sentence and shows that the SOP’s projected release date for petitioner, June 25, 20281,
is within that sentence. The petitioner’s argument in this case is that when he was
resentenced to consecutive sentences, the time he had served so far should count towards
each sentence, because he was initially sentenced to serve them concurrently. But, as the
magistrate judge observed, “petitioner either fails to recognize or refuses to recognize that
his amended sentence on each count was ordered to run consecutive, and therefore, the
BOP was required to calculate an aggregate sentence of 252 months beginning on
October 3,2021 and awarding him 1032 days of prior custody credit.” [Doc. 16 at 9]. The
magistrate judge found that this case was analogous to Headspeth v. Conley, 126
F.Supp.2d 1004 (S.D. W.Va. 2001)(Haden, J.), aff’d, 19 F. App’x 60(4th Cir. 2001). In
Headspeth, Headspeth was resentenced to a five-year term following the vacation of a
fifteen-year sentence; the fifteen-year sentence was to run concurrently with a ten-year
sentence on a second count, while the resentenced five-year sentence was to run
consecutive to the ten-year sentence. Headspeth argued that he should be credited for
presentence time toward both sentences; the court instead found that:
because the consecutive five-year sentence on Count Two was ordered to
run in a different sequence from the original fifteen-year concurrent sentence,
it commenced at the conclusion of the ten-year sentence. Therefore,
Petitioner is not entitled to credit on the consecutive five-year sentence for the
404 days served prior to resentencing. Clearly, it would be contrary to the
1The Court notes that the BOP website now shows petitioner’s release date as February
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intent of the sentencing court and the later Amended Judgment and
Commitment Order to credit Petitioner with time served on a sentence
ordered to be consecutive, rather than concurrent, deliberately chosen to
effectuate a total sentence of fifteen years.
Headspeth, 126 F.Supp.2d at 1007. Because the magistrate judge found that the same
reasoning applied to this case, the R&R recommends that the petition be denied and
dismissed with prejudice.
On February 11, 2021, petitioner filed his Opposition to Magistrates Report and
Recommendation [Doc. 18]. Therein, petitioner raises several objections to the R&R.
First, petitioner objects to the fact that the R&R characterizes petitioners argument as
“simply not true,” asserting that it is true. [Doc. 18 at 1]. Second, petitioner objects to the
R&R referencing his projected release date of June 25, 2028, because the BOP might
deny good conduct time “for anyone (sic) of a host of arcane reasons,” and that
“petitioner’s only true release date is 7 December 2031.” [Id.]. Third, petitioner objects to
the R&R’s statement that the differences petitioner asserts between this case and
Headspeth are misplaced, as he argues “each is a matter of concrete fact.” [Id.]. Fourth,
the petitioner objects to the R&R’s statement that accepting petitioner’s argument would
thwart the intent of the sentencing court. [Id. at 1—2]. Finally, in a “Question before the
Court,” petitioner raises a hypothetical, analogizing this case to a contract dispute in which
a party attempts to later charge a “one for one” rather than “three for one” rate. [Id. at 2].
As an initial matter, this Court finds that the first, third, and fourth objections are the
type of “general and conclusory objections that do not direct the court to a specific error
in the magistrate’s proposed findings and recommendations,” which do not warrant de
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novo review. Orpiano v. Johnson, 687 F.2d 44,47(4th Cir 1982). In these objections,
the petitioner merely objects to the fact that the magistrate judge did not accept his
argument without pointing this Court to any basis to reject the R&R’s findings. Accordingly,
these objections are overruled.
As to the second objection, while the Court agrees with petitioner that it is possible
his projected release date could change, this misses the point the magistrate judge was
making—that the BOP’s projected release date shows that its calculation of petitioner’s
sentence is in line with the intent of the sentencing court. Accordingly, this objection is
As to petitioner’s final objection, in which he analogizes the application of his new
sentence to a breach of contract case, the Court notes that a criminal sentencing is not
analogous to a contract. As the analysis in Headspeth makes clear, petitioner’s time
served priorto resentencing does not apply, in terms of petitioner’s analogy, at a “three-forone rate.” This objection is therefore overruled.
Upon careful review of the above, it is the opinion of this Court that the Report and
Recommendation [Doc. 16] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated in the magistrate judge’s report. Accordingly, the petitioner’s
objections [Doc. 18] are OVERRULED, respondent’s Motion to Dismiss or for Summary
Judgment [Doc. 12] is hereby GRANTED, and the
§ 2241 petition [Doc. 1] is hereby
DENIED and DISMISSED WITH PREJUDICE. The Clerk is directed to STRIKE this mailer
from the active docket of this Court and enter judgment in favor of respondent.
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It is so ORDERED.
The Clerk is directed to transmit copies of this Order to any counsel of record and
to mail a copy to the pro se petitioner.
DATED: February 17, 2021.
UNITED STATES DISTRICT JUDGE
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