United States District Court, D. South Carolina, Aiken Division
OPINION & ORDER
M. HERLONG, JR. SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court with the Report and Recommendation
of United States Magistrate Judge Shiva V. Hodges, made in
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02
of the District of South Carolina. James Hamilton Spencer, III,
a/k/a Hank Spencer (“Spencer”), a federal
prisoner, filed a petition seeking habeas corpus relief
pursuant to 28 U.S.C. § 2241. In her Report and
Recommendation, Magistrate Judge Hodges recommends
transferring Spencer's petition to the United States
District Court for the Eastern District of North Carolina.
Factual and Procedural History
is incarcerated at FCI-Butner Low in Butner, North Carolina.
On August 22, 2017, Spencer was sentenced in the United
States District Court for the District of South Carolina to
48 months' imprisonment after pleading guilty to
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and 2252(b)(2). United States v.
Spencer, No. 3:16-cr-0679-JFA. Spencer alleges he should
receive credit toward his sentence for the eleven months that
he spent in “detention-like conditions” while on
house arrest prior to sentencing. (Id. 2, ECF No.
1.) Spencer further submits that he has exhausted all
available administrative remedies within the Federal Bureau
of Prisons (“BOP”). (Id. 2, ECF No. 1.)
§ 2241 petition was docketed on December 26, 2018.
(Pet., generally, ECF No. 1.) Spencer initially filed his
petition pro se, but is now represented by counsel. (Notice
of Appearance, ECF No. 9.) The magistrate judge issued the
Report and Recommendation on December 28, 2018. (R&R, ECF
No. 7.) The magistrate judge recommends transferring
Spencer's petition to the Eastern District of North
Carolina because this court lacks jurisdiction over
Spencer's custodian. (R&R 3-4, ECF No. 7.) Spencer
filed objections to the Report and Recommendation on January
9, 2019. (Objs., ECF No. 10.) This matter is now ripe for
Discussion of the Law
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
Spencer has two objections.
Spencer objects to the magistrate judge's conclusion that
his petition should be transferred to the Eastern District of
North Carolina and asserts (1) that the sentencing court
instructed him to file the instant petition in the District
of South Carolina and (2) that the “immediate custodian
rule, ” which requires § 2241 petitions to be
filed in the district of confinement, should not apply in
this case. (Objs. 2-4, ECF No. 10.) Generally, § 2241
petitions must be filed in the district of confinement.
In re Jones, 226 F.3d 328, 332 (4th Cir. 2000).
Spencer cites to Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484 (1973), for the proposition that
he can maintain the instant § 2241 petition outside of
the district of confinement. (Objs. 3-4, ECF No. 10.) In
Braden, the Supreme Court of the United States
allowed a prisoner incarcerated in Alabama to maintain his
§ 2241 petition in the United States District Court for
the Western District of Kentucky because the Western District
of Kentucky had personal jurisdiction over the prisoner's
custodian, who was served in the Western District of
Kentucky. Braden, 410 U.S. at 495, 500. Thus, to
entertain a § 2241 petition, the district court must
have personal jurisdiction over the prisoner's custodian.
is incarcerated in the Eastern District of North Carolina.
No. information has been provided to establish that the court
has personal jurisdiction over Warden Donna Smith, the warden
of FCI Butner Low. Because Spencer's petition pertains to
the execution of his sentence, the Eastern District of North
Carolina is the appropriate venue with jurisdiction.
United States v. Miller, 871 F.2d 488, 490 (4th Cir.
1989) (per curiam) (“A claim for credit against a
sentence attacks the computation and execution of the
sentence rather than the sentence itself. Judicial review
must be sought under 28 U.S.C. § 2241 in the district of
confinement rather than the sentencing court.”).
Accordingly, despite any statements made to Spencer by the
sentencing court, this court lacks jurisdiction to consider
Spencer's § 2241 petition, and Spencer's first
objection is without merit.
Spencer requests that, rather than transferring his petition
to the Eastern District of North Carolina, the court excuse
the form of his petition and construe it as a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255, which would render South Carolina the
appropriate jurisdiction. (Objs. 4-5, ECF No. 10.) However,
Spencer is challenging the execution of his sentence and
alleges that it is being calculated incorrectly. (Pet.
¶¶ 1, 54, 58, ECF No. 1.) Thus, § 2241 is the
appropriate statute under which to file his petition.
Fontanez v. O'Brien, 807 F.3d 84, 86 (4th Cir.
2015) (“As a general matter, a federal prisoner must
challenge the execution of a sentence under 28 U.S.C. §
2241[.]”). Accordingly, the court declines to construe
Spencer's petition as a § 2255 motion to vacate, set
aside, or correct his sentence.
thorough review of the Report and the record in this case,
the court adopts Magistrate Judge Hodges' Report and
Recommendation and incorporates it herein by reference.
that Spencer's petition, docket number 1, is transferred
to the United States District Court for the Eastern District
of North Carolina.