United States District Court, D. South Carolina
Sanchez Garcia, Petitioner, Pro Se.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. Â§
2241 was submitted to the court by a federal prison inmate
appearing pro se. Pursuant to 28 U.S.C. Â§ 636(b)(1)(B), and
Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate
judge is authorized to review all pretrial matters in such
pro se cases and to submit findings and recommendations to
the district court. See 28 U.S.C. Â§Â§ 1915(e), 1915A
(as soon as possible after docketing, district courts should
review prisoner cases to determine whether they are subject
to summary dismissal).
Sanchez Garcia ("Petitioner") is a federal
prisoner, currently incarcerated at FCI-Williamsburg, in
Salters, South Carolina. In the Â§ 2241 Petition under review,
Petitioner asserts that the Federal Bureau of Prisons
("BOP") has miscalculated his sentence because it
failed to give him credit for a 51-month sentence entered by
the Western District of Washington. Pet. 2, 8-9, ECF No. 1.
Petitioner asks this court to order the BOP to grant him
credit for "the 51 months in the concurrent
sentence." Id. at 10.
Petition does not refer to it, see id. at 5 (no
reference to the previous case despite question requiring
information on prior cases), the undersigned's review of
this court's docket discloses that Petitioner has
previously fully, but unsuccessfully, litigated a Â§ 2241
petition challenging his sentence calculation on virtually
the same basis. In Garcia v. Warden,
FCI-Williamsburg, No. 5:15-cv-01127-HMH (D.S.C.), the
court found Petitioner was not entitled to additional
sentence credits for the 51-month sentence because that
sentence had already been completed before Petitioner began
serving his current sentences. The court also held that the
BOP's sentencing authority did not violate that
Separation of Powers Doctrine. See No.
5:15-cv-01127-HMH, ECF No. 24 at 9-10 (report and
recommendation adopted in its entirety). That case was
concluded on February 8, 2016 with District Judge
Herlong's denial of Petitioner's motion for
reconsideration. Petitioner did not file an appeal with the
Fourth Circuit Court of Appeals.
Standard of Review
established local procedure in this judicial district, a
careful review was made of the pro se Petition filed in this
case. The review was conducted pursuant to the procedural
provisions of 28 U.S.C. Â§Â§ 1915, 1915A, and the
Anti-Terrorism and Effective Death Penalty Act of 1996, and
in light of the following precedents: Denton v.
Hernandez, 504 U.S. 25 (1992); Neitzke v.
Williams, 490 U.S. 319, 324-25 (1989); Haines v.
Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Md.
House of Corr., 64 F.3d 951 (4th Cir. 1995); Todd v.
Baskerville, 712 F.2d 70 (4th Cir. 1983); Boyce v.
Alizaduh, 595 F.2d 948 (4th Cir. 1979).
court is required to construe pro se petitions liberally.
Such pro se petitions are held to a less stringent standard
than those drafted by attorneys, Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district
court is charged with liberally construing a petition filed
by a pro se litigant to allow the development of a
potentially meritorious case. Erickson v. Pardus,
551 U.S. 89, 94 (2007). When a federal court is evaluating a
pro se petition the petitioner's allegations are assumed
to be true. De'Lonta v. Angelone, 330 F.3d 630,
630 n.1 (4th Cir. 2003). The requirement of liberal
construction does not mean that the court can ignore a clear
failure in the pleading to allege facts which set forth a
claim currently cognizable in a federal district court.
Weller v. Dep't of Soc. Servs., 901 F.2d 387,
391 (4th Cir. 1990).
this court is charged with screening Petitioner's lawsuit
to determine if "it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court." Rule 4 of Rules
Governing Section 2254 Cases in the United States District
Courts; see Rule 1(b) of Rules Governing Section
2254 Cases in the United States District Courts (a district
court may apply these rules to a habeas corpus petition not
filed pursuant to Â§ 2254). Following the required initial
review, it is recommended that the Petition submitted in this
case should be summarily dismissed.
petition is frivolous or patently absurd on its face, entry
of dismissal may be made on the court's own motion
without the necessity of requiring a responsive pleading from
the government. See Raines v. United
States, 423 F.2d 526, 529 (4th Cir. 1970). It has been
held that the issue of successiveness of a habeas petition
may be raised by the court sua sponte. Rodriguez
v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997);
Latimer v. Warden, No. 6:10-721-JFA-WMC, 2010 WL
2720912 (D.S.C. July 8, 2010). Under 28 U.S.C. Â§ 2244(a),
this court is "not required to entertain an application
for a writ of habeas corpus to inquire into the detention of
[a federal prisoner] if it appears that the legality of such
detention has been determined by a judge or court of the
United States on a prior application for a writ of habeas
corpus, except as provided in section Â§ 2255." Other
courts have held that Â§ 2241 petitions involving sentence
calculation claims may be dismissed for successiveness and
abuse of the writ. See, e.g., Queen v.
Miner, 530 F.3d 253, 255 (3d Cir. 2008) ("Section
2244(a) bars second or successive challenges to the legality
of a detention pursuant to 28 U.S.C. Â§ 2241, including those
Â§ 2241 petitions which challenge the execution of a federal
sentence."); Valona v. United States, 138 F.3d
693, 695 (7th Cir. 1998) (noting that "Â§ 2244(a) bars
successive petitions under Â§ 2241 directed to the same issue
concerning execution of a sentence"); Chambers v.
United States, 106 F.3d 472, 475 (2d Cir. 1997)
(dismissing pursuant to Â§ 2244(a) jail-credit claim brought
in earlier Â§ 2241 petition); see also Perry v. Warden
Fort Dix FCI, 609 F.Appx. 725, 726-27 (3d Cir. 2015)
(affirming dismissal of Â§ 2241 asserting sentencing
calculation error for the second time as an abuse of the
writ); Cunningham v. O'Brien, No. 7:09CV00423,
2009 WL 3415213, at *1-2 (W.D. Va. Oct. 22, 2009) (dismissing
as successive a Â§ 2241 petition addressing sentence
calculations). Also, the Eastern District of North Carolina
has held that "[t]he abuse of the writ doctrine mandates
dismissal of claims presented in habeas petitions if the
claims were raised, or could have been raised in an earlier
petition." Hilton v. Johns, No.
5:11-HC-2098-BO, 2012 WL 3000429, at *2 (E.D. N.C. July 23,
2012) (footnote omitted) (citing McCleskey v. Zant,
499 U.S. 467, 489 (1991); Noble v. Barnett, 24 F.3d
582, 585 (4th Cir. 1994); Mendez v. United States,
No. 04-HC-90-FL, 2004 WL 3327911, *2 n.1 (E.D. N.C. 2004),
aff'd, 126 F.Appx. 148 (4th Cir. 2005)); see
also Anderson v. Lappin, No. 5:09-HC-2071-BO, 2010 WL
3063235, at * 1 (E.D. N.C. Aug. 4, 2010).
full review of his filings and this court's docket
discloses that Petitioner continues to assert a
sentence-calculation challenge that was already the subject
of a Â§ 2241 petition considered on the merits by this court
in Garcia v. Warden FCI-Williamsburg, No.
5:15-cv-1127-HMH. SeeColonial Penn Ins. Co. v.
Coil,887 F.2d 1236, 1239 (4th Cir. 1989) ("[t]he
most frequent use of judicial notice of ascertainable facts
is in noticing the content of court records.'").
Because Petitioner could have raised the arguments he makes
in the present ...