United States District Court, D. South Carolina
ORDER AND OPINION
Richard Mari-Gergel United States District Court Judge
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge
recommending that this Court dismiss Petitioner's 28
U.S.C. § 2241 habeas petition. For the reasons set forth
below, this Court adopts the R. & R. (Dkt. No. 16) as the
order of the Court. The habeas petition is dismissed.
Donald Brown, who is proceeding pro se, is currently
incarcerated at Federal Correctional Institution
("FCI") Williamsburg in Salters, South Carolina.
Mr. Brown filed this petition for writ of habeas corpus on
May 30, 2017, alleging that the Bureau of Prisons
("BOP") incorrectly calculated his federal
sentence. (Dkt. No. 1.) Petitioner alleges that the BOP did
not give him credit toward his federal sentence for the
period of time he was in custody from September 25, 2007
through January 2, 2009. The Magistrate has outlined the
facts of the case in detail so the court has not repeated
them here. (Dkt. No. 16.) The Magistrate explained that
Petitioner received credit toward his state sentence for the
entire period he was in custody from September 25, 2007
through January 2, 2009, even though for a portion of this
period he was "borrowed" by the U.S. Marshals
pursuant to a writ of habeas corpus ad prosequendum.
Mr. Brown then received credit toward his federal sentence
for the period from January 3, 2009 through March 2, 2009,
when he remained in state custody after completing his state
sentence and had not yet been transferred to the U.S.
Marshals to begin serving his federal sentence. (Dkt. No.
11-1 at 12.) The Magistrate explained that Petitioner is not
entitled to have any time in custody credited toward both his
federal and state sentence. (Dkt. No. 16.)
Pro Se Pleadings
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep 't of
Social Services, 901 F.2d 387 (4th Cir. 1990).
Magistrate's Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). Where
the Petitioner fails to file any specific objections, "a
district court need not conduct a de novo review,
but instead must only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation." See Diamond v. Colonial Life &
Accident Ins, Co., 416 F.3d 310, 315 (4th Cir. 2005)
(internal quotation omitted).
has filed Objections to the Magistrate's R. & R. in
which he argues that the Federal Bureau of Investigation
("FBI") had primary jurisdiction over him beginning
with his arrest on September 25, 2007. He also argues that
the time he spent in custody from September 25, 2007 through
January 2, 2009 could not have been credited toward a state
sentence because his parole was not revoked until December
15, 2008, after he was returned to state custody following
his federal conviction. He also asserts that his state parole
revocation was based on his federal conviction and not on the
technical parole violation he was initially arrested for on
September 25, 2007.
first challenges the Magistrate's determination that he
came under the primary jurisdiction of the state of Georgia
when he was arrested on September 25, 2007 during a joint
operation of several law enforcement agencies, including the
FBI, the Bureau of Alcohol, Tobacco, and Firearms, and the
Savannah-Chatham Metro Police Department. (Dkt. No. 16 at 6.)
Petitioner believes he was arrested by the FBI so was under
the primary jurisdiction of federal authorities.
defendant who is arrested pursuant to a joint effort of
federal and state agencies may understandably perceive that
the agency who led the effort to arrest him obtained primary
jurisdiction. A magistrate judge in the Central District of
California considered a set of facts similar to those at
issue here in a Report and Recommendation that was later
adopted by the district court judge. McDade v.
Gutierrez, No. CV 13-7503-CJC (JEM), 2016 WL 519615, at
*3 (CD. Cal. Jan. 5, 2016), report and recommendation
adopted, No. CV 13-7503-CJC (JEM), 2016 WL 540732 (CD. Cal.
Feb. 9, 2016). The magistrate determined that while
petitioner's offense was both a federal crime and a
violation of his state parole, he was arrested pursuant to a
state parole violation and placed in state custody in a state
detention facility. The Magistrate considered evidence that
the federal authorities later used a writ of habeas corpus
ad prosequendum to obtain physical custody over the
petitioner to be further evidence that the state of Texas had
primary jurisdiction. The facts in this case are essentially
the same. The record shows that Petitioner was arrested on
September 25, 2007 for a parole violation and booked by the
Chatham County Sheriffs Department. (Dkt. No. 11-1 at 407.)
Later, federal authorities used a writ of habeas corpus