United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
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
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.)
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
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.)
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).
Report and Recommendation
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.
§ 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
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.