United States District Court, D. South Carolina, Aiken Division
Ernest D. Dailey, Plaintiff,
Bureau of Prisons, Respondent.
ORDER AND OPINION
RICHARD MARK GERGEL UNITED STATES DISTRICT COURT JUDGE.
the Court is the Report and Recommendation (R & R) of the
Magistrate Judge recommending that Plaintiffs petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 be
dismissed without prejudice. (Dkt. No. 11.) For the reasons
set forth below, the Court adopts the R & R as the Order
of the Court and dismisses the petition without prejudice.
is a pro se incarcerated person currently serving a
term of imprisonment on a conviction of possession of cocaine
and of a firearm in furtherance of a drug trafficking crime.
Petitioner asserts that the Bureau of Prisons must
immediately recalculate his sentence in order to comply with
the First Step Act of 2018, Pub. L. No. 115-015, 132 Stat.
015 (2018). Petitioner originally sought a writ of mandamus,
which he timely amended as a petition for a writ of habeas
corpus under § 2241 in response to the Magistrate
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. See, e.g., 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)(C).
Where a petitioner has not objected to the R & R, the
Court reviews the R & R to "only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation." Fed.R.Civ.P. 72 advisory
committee's note; see also Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983) ("In the absence of
objection ... we do not believe that it requires any
Court finds that the Magistrate Judge ably addressed the
issues and properly determined that the petition should be
dismissed, to which Petitioner filed no objections. Rule 4 of
the Rules Governing Section 2254 Cases in U.S. District
Courts provides that "[i]f it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify the
petitioner." See also Rule 1(b) (allowing
district court to apply the § 2254 Rules to § 2241
petitions). Petitioner claims that the First Step Act
requires the Bureau of Prisons to award 54 days per year of
good conduct time, rather than 47 days. (Dkt. No. 7 at 2.)
While the First Step Act amends 18 U.S.C. § 3624(a) to
permit a federal inmate to earn 54 days of good conduct time
for each year of sentence, the amendment has not yet taken
effect. Rather, the First Step Act provides that the
amendment takes effect when the Attorney General completes a
"risk and needs assessment system" required by
§ 101(a) of the Act. Section 101(a) does not require
completion of the system until 210 days after the Act's
passage, which was on December 21, 2018. Therefore, unless
the Attorney General takes action sooner, the amendment would
not take effect until July 2019. For these reasons, applying
an appropriately liberal construction to the petition so as
to afford the pro se litigant to develop a
potentially meritorious claim, the petition is subject to
Certificate of Appealability
governing law provides:
(c)(2) A certificate of appealability may issue . . . only if
the applicant has made a substantial showing of the denial of
a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate
which specific issue or issues satisfy the showing required
by paragraph (2).
28 U.S.C. § 2253; see also Rule 1(b) ("The
district court may apply any or all of these rules to a
habeas corpus petition not covered by [28 U.S.C. §
2254]."). A prisoner satisfies the standard by
demonstrating that reasonable jurists would find the
Court's assessment of his constitutional claims debatable
or wrong and that any dispositive procedural ruling by the
district court is likewise debatable. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001). Here, the legal
standard for the issuance of a certificate of appealability
has not been met. A reasonable jurist would not find it
debatable that the petition is subject to dismissal.
Therefore, a Certificate of Appealability is denied.