United States District Court, D. South Carolina, Beaufort Division
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge (Dkt. No,
30) recommending that Respondents' motion for summary
judgment (Dkt. No. 14) be granted. For the reasons set forth
below, this Court adopts the R. & R. as the Order of the
Court with the additional reasons outlined below.
Respondents' motion for summary judgment is granted.
Jerome Cunningham ("Petitioner"), proceeding
pro se, is currently incarcerated at the Federal
Correctional Institution ("FCI") in Bennettsville,
South Carolina, serving an aggregate sentence of 45 years to
life plus 36 years comprised of both District of Columbia and
federal sentences. (Dkt. No. 14-2.) The United States Parole
Commission (the "Commission") conducted a parole
hearing for Petitioner on February 1, 2016. Since the
Commission deemed Petitioner to have completed his federal
time, it considered his case under the D.C. parole
guidelines. The Commission calculated Petitioner's
"grid score" to be points, which under D.C.
parole guidelines indicates that parole should be denied. The
Commission therefore denied parole on February 1, 2016, and
informed Petitioner of the denial by notice of action dated
March 17, 2016. (Dkt. No, 14-4.) Petitioner attempted to
appeal the denial, and the Commission construed his appeal as
a request to reopen his case because decisions of the
Commission are not administratively appealable. His request
was denied on August 29, 2016.
August 15, 2016, Petitioner filed this federal habeas
petition under 28 U.S.C. § 2241, raising the following
grounds for relief:
Ground One; The Commission abused its
discretion by denying Petitioner parole because he did not
complete a "sexually dangerous person civil commitment
program" and made such a condition a prerequisite at
future parole hearings;
Ground Two: The Commission's use of the
1987 "point score" guidelines of the D.C. Board of
Parole, rather than the 1972 regulation in effect when he
committed his crime, violates the ex post facto
clause of the U.S. Constitution;
Ground Three: Neither the 1987 guidelines
nor the 1972 regulation permit departure from the guidelines,
and that he should have been scheduled for a rehearing in 12
Ground Four: The Commission abused its
discretion by relying on the offenses' underlying
sentences that he claims he has served in full.
moved for summary judgment on the entire habeas petition.
(Dkt. No. 14.) The Magistrate has recommended that this Court
grant the motion for summary judgment. (Dkt. No. 30.)
Report and Recommendation of the Magistrate Judge
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination
of those portions of the Report and Recommendation to which
specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation of the
Magistrate Judge. 28 U.S.C. § 636(b)(1).
proper objection is made to a particular issue, "a
district court is required to consider all arguments directed
to that issue, regardless of whether they were raised before
the magistrate." United States v. George, 971
F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he
district court's decision whether to consider additional
evidence is committed to its discretion, and any refusal ...