United States District Court, D. South Carolina, Charleston 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 recommending that Plaintiffs petition be
dismissed under Rule 4. (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.
is an incarcerated person proceeding pro se to seek
that the Bureau of Prisons recalculate the good conduct time
credits applied to his sentence. Plaintiff alleges that the
First Step Act requires the Bureau of Prisons to immediately
apply a new calculation method, which the Bureau of Prisons
has failed to implement because it misreads the Act's
effective date. (Dkt. No. 1 at 4, No. 1-2 at 7.)
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
i 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 explanation.").
Court finds that the Magistrate Judge ably addressed the
issues and properly construed the petition as brought under
§ 2241 and that should be dismissed.
March 18, 2019 filing styled a "petition for writ of
mandamus," which attaches a petition for § 2241
relief, Petitioner seeks to challenge what he contends are
incorrect calculations of good conduct time credits. This
relief sought is properly construed as a claim for habeas
corpus under § 2241. See Yi v. Fed. Bureau of
Prisons, 412 F.3d 526, 528 (4th Cir. 2005); Clemmons
v. South Carolina, No. 0:08-cv-607-RBH, 2008 WL 2845636,
at 1 (D.S.C. July 18, 2008).
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). The petition is predicated on the contention that
the First Step Act's amendment to § 3624(b) has
already taken effect and therefore requires the Bureau of
Prisons to immediately recalculate Petitioner's sentence
and provide him with additional days of good conduct time
credit. However, according an appropriately liberal
construction for this pro se litigant, it appears
from the petition that Petitioner is not entitled to relief.
The First Step Act provides that the amendment takes effect
only when the Attorney General completes a "risk and
needs assessment system" that Section 101(a) of the Act
requires. Section 101(a) further 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. Nor would Petitioner's
petition survive if instead construed as for a writ of
mandamus because the petition does not satisfy the
"rigorous test" of showing that:
(1) he has a clear and indisputable right to the relief
sought; (2) the responding party has a clear duty to do the
specific act requested; (3) the act requested is an official
act or duty; (4) there are no other adequate means to attain
the relief he desires; and (5) the issuance of the writ will
effect right and justice in the circumstances.
In re Braxton, 258 F.3d 250, 261 (4th Cir. 2001)
(internal citations omitted).
the petition is subject to dismissal.