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McCullough v. Bureau of Prisons

United States District Court, D. South Carolina, Orangeburg Division

April 16, 2019

Lawrence McCullough, Jr., Petitioner,
v.
Bureau of Prisons, Respondent.

          ORDER AND OPINION

          RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.

         Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 18) recommending that Respondent's Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 be dismissed without prejudice. For the reasons set forth below, the Court adopts the R & R as the order of the Court and the Petition is dismissed without prejudice.

         I. Background

         Petitioner Lawrence McCullough, Jr. is currently incarcerated at the Federal Correctional Institution Williamsburg in Salters, South Carolina. (Dkt. No. 11 at 1.) Petitioner is currently serving a sentence of 187 months imposed in the United States District Court for the Southern District of Georgia. (See Southern District of Georgia, Case No. 6:09-cr-048-LGW, Dkt. No. 1142.) The date of original judgment was November 23, 2010. (Id.)

         Petitioner now files this § 2241 Petition arguing that the Bureau of Prison ("BOP") is delaying implementation of the recently-passed First Step Act's new good time credit provisions, which he alleges violates the Constitution and rules of statutory construction. (Dkt. No. 11 at 6.) Petitioner argues that the First Step Act now provides inmates who show "exemplary compliance with institutional rules" 54 days of good time credit rather than the previously awarded 47 days of credit. (Id. at 7.) Petitioner alleges the BOP has continued to provide only 47 days of credit, and seeks an order compelling the BOP to provide 54 days of credit immediately. (Id. at 8.)

         The Magistrate Judge recommended that the Petition be dismissed without prejudice since Petitioner failed to exhaust his administrative remedies. (Dkt. 18 at 3.) Petitioner filed objections to the R & R, arguing that his failure to exhaust the administrative remedies should be excused and reiterating the arguments in his Petition. (Dkt. No. 22.)

         II. Legal Standard

         A. Pro Se Pleadings

         This 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).

         B. Report and Recommendation

         The Magistrate Judge makes only a recommendation to this Court that has no presumptive weight. The responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). 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). This Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made. Fed.R.Civ.P. 72(b)(2). Where the plaintiff 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." Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal quotation omitted). Petitioner filed objections, and the R & R is therefore reviewed de novo.

         III. Discussion

         While § 2241 does not contain a statutory exhaustion requirement, it is well settled that a prisoner "must exhaust their administrative remedies prior to filing a § 2241 petition." McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004). See also Timms v. Johns, 627 F.3d 525, 531 (4th Cir. 2010) (requiring exhaustion for § 2241 petition); Taylor v. Warden, Satellite Prison Camp at Edgefield, S.C, No. 2:16-CV-01826-RBH, 2017 WL 359497, (D.S.C. Jan. 25, 2017). In this context, the Petitioner must therefore exhaust administrative remedies provided within the BOP. Henderson v. Warden, Edgefield Satellite Prison Camp, No. CIVA 209CV01599-RBH, 2009 WL 3317149, at *2 (D.S.C. Oct. 14, 2009) ("It is well settled that a federal prisoner is required to exhaust his administrative remedies within the BOP before filing an action pursuant to § 2241.").

         Petitioner does not dispute that he failed to exhaust his administrative remedies. (Dkt. Nos. 11 at 2; 22 at 1 - 2.) However, Petitioner argues that the Court should excuse the exhaustion requirement. (Dkt. No. 22 at 1 - 2.) In the first instance, Petitioner is correct that the First Step Act includes a provision mandating that good time credits are now calculated as "up to 54 days for each year of the prisoner's sentence imposed by the court." FIRST STEP ACT OF 2018, PL 115-391, December 21, 2018, 132 Stat 5194; 18 U.S.C.A. § ...


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