Opinion
CA 9:24-cv-01635-JD-MHC
12-19-2024
Ulysses Richman, Petitioner, v. Warden Graham, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner Ulysses Richman (“Petitioner”), a federal inmate in the custody of the Federal Bureau of Prisons (“BOP”), petitions the Court pro se for a writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1.
Respondent Warden Graham (“Respondent”) filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. ECF No. 12. Petitioner filed a Response in Opposition, ECF No. 21, and Respondent filed a Reply, ECF No. 22. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this matter was referred to the undersigned for a Report and Recommendation. For the reasons that follow, the undersigned recommends that the Motion be granted.
I. BACKGROUND
A. The First Step Act
“After a district court sentences a federal offender, the Attorney General, through the BOP, has the responsibility for administering the sentence.” United States v. Wilson, 503 U.S. 329, 335 (1992). “Federal sentencing law permits federal prison authorities to award prisoners credit against prison time as a reward for good behavior.” Barber v. Thomas, 560 U.S. 474, 476 (2010) (citing 18 U.S.C. § 3624(b)).
The First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018) (“FSA”), was enacted on December 21, 2018. See 18 U.S.C. § 3632. Among other things, the FSA:
charged the Attorney General with the development and public release of the Risk and Needs Assessment System (the “System”) within 210 days of the enactment of the statute. 18 U.S.C. § 3632. Following its development and publication, the System is designed to be used to: determine an inmate's recidivism risk; assess the inmate's risk of violent or serious misconduct; determine the appropriate type and amount of evidence-based recidivism reduction (“EBRR”) programming appropriate for each inmate; periodically reassess an inmate's recidivism risk; reassign an inmate to appropriate EBRR programs or productive activities (“PAs”); determine when to provide the inmate with incentives and rewards for successful participation in EBRR and PAs; and determine when the inmate is ready to transfer into prerelease custody or supervised release. 18 U.S.C. § 3632(a). The System provides guidance on the type, amount, and intensity of EBRR programs and PAs to be assigned to each inmate based on the inmate's specific criminogenic needs. 18 U.S.C. § 3632(b). The System is also intended to provide information on the best ways the BOP can tailor programs to the specific criminogenic needs of an inmate so as to effectively lower each inmate's risk of recidivism. 18 U.S.C.§ 3632(b). The statute permits an eligible inmate who successfully completes EBRR programming or PAs to earn time credits to be applied toward time in prerelease custody or supervised release. 18 U.S.C. § 3632(d)(4)(A).Hill v. Knight, No. 2: 21-cv-00103-SAL-MGB, 2021 WL 5605592, at *3 (D.S.C. Sept. 14, 2021) (quoting Kurti v. White, No. 1: 19-cv-2109, 2020 WL 2063871, at *4 (M.D. Pa. Apr. 29, 2020)), report and recommendation adopted, 2021 WL 5598954 (D.S.C. Nov. 30, 2021).
All sentenced inmates receive both a risk and need assessment. See BOP Program Statement 5410.01 at § 5, First Step Act of 2018-Time Credits: Procedures for Implementation of 18 U.S.C. § 3632(d)(4), available at https://www.bop.gov/policy/progstat/5410.01cn2.pdf (last visited Dec. 2, 2024). The Prisoner Assessment Tool Targeting Estimated Risk and Needs (“PATTERN”) is the recidivism risk assessment tool and part of the BOP's FSA-approved Risk and Needs Assessment System. Id. The PATTERN tool is completed during the inmate's Initial Classification, where he is assigned an initial recidivism risk level of Minimum, Low, Medium, or High. Id. Inmates are reassessed for both risk level and needs at each regularly scheduled Program Review throughout the remainder of the inmate's incarceration at a BOP institution. Id.
B. Facts Related to Petitioner
Petitioner is an inmate who was incarcerated at the Federal Correctional Institution (“FCI”) Williamsburg in Salters, South Carolina, at the time he filed the Petition. ECF No. 1. Petitioner is serving an aggregate term of imprisonment of 185 months, which began on December 1, 2014, and he has a projected release date of September 25, 2028, via Good Conduct Time release. ECF No. 12-1, Decl. of J. Carter, Attachment A, SENTRY Public Information Inmate Data. The sentence is composed of: (1) a 180-month term imposed on October 27, 2014, in the Middle District of Florida for violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), Possession With Intent to Distribute Cocaine and 18 U.S.C. §§ 922(g)(1) and 924(e), Possession of a Firearm by a Convicted Felon; and (2) a 5-month consecutive term imposed on February 16, 2016, by the Eastern District of Arkansas for violation of 18 U.S.C. § 1791(a)(2), Possession of a Prohibited Object in Prison. See id.; see also Civil Action No. 2:13-cr-127-FTM-29DN (M.D. Fla.); Civil Action No. 4:16-cr-00012-01 (E.D. Ark.). As of April 9, 2024, Petitioner's PATTERN recidivism risk assessment level was High. See ECF No. 12-1 at 1, 6.
Petitioner subsequently filed a notice of change of address indicating that he has been transferred to FCI-Butner in Butner, North Carolina. See ECF No. 20.
Petitioner filed the instant action on April 2, 2024, alleging that the BOP is misinterpreting the FSA and has improperly denied him time credits for EBRR Programming in light of the FSA. ECF No. 1-1. Petitioner alleges that his sentences should be viewed separately for the purposes of the FSA because he has both an eligible and an ineligible offense, and he asserts that even if BOP aggregates his offenses, he has already served the sentence on his ineligible offense. See ECF No. 1-1 at 1-3. Petitioner further asserts that the BOP's actions violate his constitutional rights under the Fifth and Eighth Amendments. Id.
Respondent does not dispute that prior to filing the instant case, Petitioner exhausted his administrative remedies with BOP. See ECF No. 12 at 2; ECF No. 12-1.
II. LEGAL STANDARDS
Respondent moved under Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. ECF No. 12. Because the parties submitted, and the undersigned considered, matters outside of the Petition, Respondent's Motion has been treated as one for summary judgment. See Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”).
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, although the Court views all the underlying facts and inferences in the record in the light most favorable to the non-moving party, the non-moving “party nonetheless must offer some ‘concrete evidence from which a reasonable juror could return a verdict in his [or her] favor.'” Williams v. Genex Servs., LLC, 809 F.3d 103, 109 (4th Cir. 2015) (quoting Anderson, 477 U.S. at 256). That is to say, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Habeas Corpus
Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b), Rules Governing § 2254 Cases, 28 U.S.C.A. foll. § 2254.
Habeas corpus proceedings are the proper mechanism for a prisoner to challenge the legality or duration of his custody. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). The primary means of attacking the validity of a federal conviction and sentence is through a motion pursuant to 28 U.S.C. § 2255, while a petition for habeas corpus under § 2241 is the proper method to challenge the computation or execution of a federal sentence. See United States v. Little, 392 F.3d 671, 678-79 (4th Cir. 2004).
A petitioner may bring a petition for a writ of habeas corpus under § 2241 if he is “attacking] the computation and execution of the sentence rather than the sentence itself.” United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989) (per curiam); see also Diaz v. Warden, FCI Edgefield, No. 4:17-cv-00093-RBH, 2017 WL 2985974, at *2 (D.S.C. July 13, 2017) (noting a § 2241 petition “is the proper means for a federal prisoner to challenge the BOP's sentencing calculations”). A § 2241 petition challenging the execution of a federal prisoner's sentence generally addresses “such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention[,] and prison conditions.” Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Manigault v. Lamanna, No. 8:06-047-JFA-BHH, 2006 WL 1328780, at *1 (D.S.C. May 11, 2006) (“A motion pursuant to § 2241 generally challenges the execution of a federal prisoner's sentence, such as parole matters, computation of sentence by prison officials, prison disciplinary actions, and prison transfers.”). A § 2241 petition must be brought against the warden of the facility where the prisoner is being held, Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004), and “in the district of confinement rather than in the sentencing court,” Miller, 871 F.2d at 490. See also 28 U.S.C. § 2242.
III. DISCUSSION
Respondent argues that the § 2241 Petition should be dismissed because: (1) Petitioner was properly deemed ineligible to earn FSA Time Credits; and (2) Petitioner cannot establish his constitutional claims. ECF No. 12. Upon review, the undersigned concludes that Respondent's Motion should be granted and the Petition dismissed.
A. Eligibility for Earned Time Credits under the First Step Act
The FSA provides, among other things, that eligible inmates who successfully complete EBRR programming or productive activities earn time credits at a rate described in the statute. 18 U.S.C. § 3632(d)(4). However, 18 U.S.C. § 3632(d)(4)(D) provides an extensive list of offenses that render an inmate “ineligible to receive [FSA] time credits,” if the inmate is “serving a sentence for a conviction” of any of the enumerated offenses. One of those enumerated disqualifying offenses is “Section 1791, relating to providing or possessing contraband in prison.” 18 U.S.C. § 3632(d)(4)(D)(xxix).
Petitioner asserts that he is entitled to FSA credits because he has two sentences. In his Petition, he seems to agree that his § 1791 sentence would preclude him from eligibility to earn FSA time credits, but he argues that he has already served that five-month sentence and that BOP should not be “stacking” his sentences. See ECF No. 1-1 at 2-3. As such, Petitioner believes that he is eligible to earn FSA time credits on his other term, for felon in possession of a firearm and possession with intent to distribute cocaine. Id.
In the Motion, Respondent argues that the BOP properly aggregated Petitioner's sentences and that his conviction under § 1791 precludes him from eligibility for FSA time credits on his aggregate term of imprisonment. ECF No. 12 at 6. In his Response, Petitioner argues that the plain meaning of § 3632(d)(4)(D) directs that a prisoner be ineligible for FSA time credits only while he “is serving” the individual sentence for the ineligible offense. ECF No. 21 at 2-3. He further argues that the “authority granted to the BOP under § 3584(c) is limited to ‘administrative purposes' for sentence computation, and [it] does not convert two separate convictions into one.” Id. at 3. Upon review, the undersigned is constrained to agree with Respondent.
The FSA does not address whether a prisoner serving concurrent or consecutive sentences-at least one of which is for an ineligible offense-may earn FSA time credits for the portion of his term that is attributable only to an eligible offense. Thirty-four years before Congress enacted the FSA, however, Congress adopted 18 U.S.C. § 3584. See Giovinco v. Pullen, 118 F.4th 527, 531 (2d Cir. 2024). That statute provides that “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” 18 U.S.C. § 3584(c).
The BOP is responsible for administering sentences imposed by the sentencing courts. See Wilson, 503 U.S. at 335. Regardless of whether terms of imprisonment are ordered to run consecutively or concurrently, Congress mandates that the BOP “shall” treat such multiple sentences as a “single, aggregate term of imprisonment” for administrative purposes. 18 U.S.C. § 3584(c); United States v. Gonzales, 520 U.S. 1, 8 (1997). “The BOP is charged with administering the FSA time credit program, and for that reason its implementation of § 3632(d)(4)(D) is an ‘administrative purpose' for which multiple terms of imprisonment are to be treated as a single, aggregate term.” Giovinco, 118 F.4th at 531; see Strauss v. Birkholz, No. 2: 24-CV-06778-SVW-JDE, 2024 WL 4867576, at *2 (C.D. Cal. Oct. 22, 2024) (“In assessing whether to award time credit under the FSA, the BOP is administering the FSA time credit program, and as such, the BOP must aggregate multiple terms of imprisonment.” (internal quotation marks omitted)).
Courts have widely upheld the BOP's determination that an aggregate term of imprisonment comprised of both an ineligible offense and an eligible offense under the FSA precludes a prisoner from earning time credits under the FSA on the aggregate term. See Giovinco, 118 F.4th at 531 (affirming the BOP's aggregation of a sentence for a conviction eligible for FSA credit with a sentence for a conviction ineligible for such credit, rendering the aggregated sentence ineligible for FSA credit); Sok v. Eischen, No. 23-1025, 2023 WL 5282709, at *1 (8th Cir. Aug. 17, 2023) (finding that the BOP properly treated prison terms as a single aggregated sentence and thus properly denied FSA time credits); Keeling v. Lemaster, No. 22-6126, 2023 WL 9061914, at *1 (6th Cir. Nov. 22, 2023) (affirming the BOP's aggregation of a sentence for a conviction under 21 U.S.C. § 841(a)(1), (b)(1), which is eligible for FSA credit, with a consecutive sentence for possession of a firearm in furtherance of a drug-trafficking offense under 18 U.S.C. § 924(c), which is ineligible for FSA credit, rendering the aggregated sentence ineligible for FSA credit); Strauss, 2024 WL 4867576, at *2 (“The BOP properly aggregated Petitioner's consecutive sentences in assessing his eligibility for FSA credit.”).
More specifically, several courts have recently considered the exact question presented in the instant case and found that inmates imprisoned for an eligible offense under the FSA, who are afterward convicted of the ineligible offense of possession of contraband in prison, are ineligible for FSA time credits in aggregate. See, e.g., Davis v. Williams, No. 24-CV-175 (VDO), 2024 WL 2089943, at *1-3 (D. Conn. May 9, 2024) (finding petitioner “statutorily ineligible to receive FSA time credits” where inmate had 10-day consecutive sentence for violating § 1791); Nesdahl v. Garrett, No. 2: 23-CV-00212-JM-JJV, 2024 WL 2926612, at *2 (E.D. Ark. Apr. 16, 2024) (finding, where inmate had a two-month consecutive sentence for violating § 1791, that petitioner was ineligible to receive FSA credits), report and recommendation adopted, No. 2:23-CV-00212-JM-JJV, 2024 WL 2925766 (E.D. Ark. June 10, 2024); Ulloa v. Cruz, No. 1: 23-CV-0776, 2024 WL 1117092, at *3 (M.D. Pa. Mar. 14, 2024) (finding, in a case where inmate had a one-month consecutive sentence for violating § 1791, that “because [petitioner] is in fact serving the Section 1791 sentence as part of his ‘single, aggregate term of imprisonment,' 18 U.S.C. § 3584(c), he is statutorily ineligible to receive FSA time credits.”); Limbrick v. Rivers, No. 3: 23-CV-312-D-BK, 2023 WL 8481850, at *2 (N.D. Tex. Oct. 13, 2023) (finding petitioner ineligible for FSA time credits because of his 75-day consecutive sentence for his disqualifying § 1791 possession-of-prohibited-object-in-prison offense), report and recommendation adopted, No. 3:23-CV-0312-D, 2023 WL 8482886 (N.D. Tex. Dec. 7, 2023).
In accordance with the line of cases cited above, the undersigned finds that the BOP properly aggregated Petitioner's consecutive sentences in assessing his eligibility for FSA credit. The BOP followed the unambiguous language of 18 U.S.C. § 3584(c) in treating Petitioner's sentences as a single, aggregate term for administrative purposes, including to assess his eligibility for FSA time credit. See ECF No. 12-1, Carter Decl., and Att. A. The BOP properly concluded that Petitioner's disqualifying term of imprisonment for violating § 1791 renders his entire sentence ineligible for FSA time credits. See Sok, 2023 WL 5282709, at *1 (affirming denial of § 2241 petition because “the BOP correctly treated [the petitioner's] prison terms as a single aggregated sentence for all 3 offenses, and therefore properly denied him FSA credits”); Teed v. Warden Allenwood FCI Low, No. 23-1181, 2023 WL 4556726, at *2 (3d Cir. July 17, 2023) (affirming denial of § 2241 petition upon finding the “BOP's aggregation of [the petitioner's] sentence and FSA ineligibility designation to be proper”).
Further, Petitioner's argument that he is not currently serving his five-month § 1791 sentence and, therefore, is eligible for time credit under the FSA is without merit. See ECF No. 1-1 at 1-3; ECF No. 21 at 3. Petitioner's argument is contrary to the plain language of § 3584(c) that “[m]ultiple terms of imprisonment ordered to run consecutively or concurrently shall be treated for administrative purposes as a single, aggregate term of imprisonment.” See Limbrick, 2023 WL 8481850, at *2 (rejecting same argument). Petitioner proffers no relevant authority to the contrary.
Petitioner argues in his Petition that his five-month term of imprisonment imposed for the § 1791 contraband conviction was completed in 2016, when he was sentenced. ECF No. 1-1 at 1-3. In his Response to the Motion, however, he argues that he has not yet started to serve his five-month sentence for the § 1791 conviction. ECF No. 21 at 3. His five-month sentence was imposed in 2016 as a consecutive sentence to the 180-month sentence he was already serving. The punishment provision of 18 U.S.C. § 1791, subsection (c), requires that any sentence imposed upon an inmate of a prison for violating section 1791 “shall be consecutive to the sentence being served by such inmate at the time the inmate commits such violation.” 18 U.S.C. § 1791(c). Thus, Petitioner's five-month sentence is consecutive to the 180-month sentence he was already serving.
In his Response, Petitioner cites the Supreme Court's recent decision in Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244 (2024), and argues that the Court should “exercise [its] independent judgment regarding [the] agency's adherence to statutory authority.” ECF No. 21 at 2. Loper Bright is not applicable here, however, because the pertinent aggregation statute is clear and unambiguous, and the Court need not decide whether the BOP's interpretation warrants any level of deference. See Giovinco, 118 F.4th at 533 (“Because we conclude, without deference, that the best reading of the applicable statutes required the BOP to aggregate [petitioner's] sentence to determine his eligibility for FSA time credits, we need not decide whether the BOP's interpretation warrants some level of deference.”). Here, the BOP properly followed the unambiguous language of 18 U.S.C. § 3584(c) in aggregating Petitioner's consecutive sentences for purposes of assessing his eligibility for FSA credit.
Loper Bright overruled Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), which had required courts to defer to an agency's reasonable interpretation of an ambiguous statute. See Chevron, 467 U.S. at 844. Under Loper Bright, courts may not defer to an agency's interpretation of the law simply because a statute is ambiguous but rather “must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” 144 S.Ct. at 2273.
B. Petitioner's Constitutional Claims
Petitioner asserts that BOP's actions violate his constitutional rights under the Fifth and Eighth Amendments. These arguments are without merit because Petitioner has no liberty interest in FSA time credits and is serving a valid sentence.
“There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979); Smith v. Warden, FCI Beckley, No. 5:23-cv-00360, 2024 WL 832879, at *5 (S.D. W.Va. Feb. 1, 2024) (noting that “numerous federal courts have recently reiterated the fact that there is no protected liberty interest in pre-release custody, such as home confinement or RRC placement”), report and recommendation adopted, 2024 WL 817449 (S.D. W.Va. Feb. 27, 2024). Moreover, there is no protected liberty interest in FSA time credits. Gant v. King, Case No. 23- CV-1766 (NEB/ECW), 2023 WL 6910771, at *3 (D. Minn. Oct. 19, 2023) (“Given the contingent nature of the application of FSA time credits to prerelease custody, they cannot reasonably be regarded as an entitlement.”); see also Fontanez v. Rardin, No. 2:23-cv-12415, 2024 WL 1776338, at *3 (E.D. Mich. April 24, 2024) (“Courts that have considered the issue have routinely found that a federal inmate does not have a liberty interest in receiving credits under the First Step Act.” (collecting cases)); White v. Warden, No. DKC-22-2371, 2023 WL 4867562, at *10 (D. Md. July 31, 2023) (finding that petitioner did not have a liberty interest in the opportunity to earn FSA time credits).
Additionally, courts have held that denial of the application of FSA time credits does not constitute cruel and unusual punishment in violation of the Eighth Amendment. See Harriot v. Jamison, 24-CV-208 (AT) (JLC), 2024 WL 2981150, at *5 (S.D.N.Y. June 13, 2024) (“Although the FSA is a relatively new law, courts have repeatedly held that a denial of the application of FSA time credits does not constitute cruel and unusual punishment in violation of a prisoner's Eighth Amendment rights.” (collecting cases)); Lee v. Birkholz, No. 22-CV-7401 (MEMF) (DFM), 2022 WL 21737756, at *4 (C.D. Cal. Nov. 1, 2022) (“The BOP's alleged failure to properly apply Petitioner's credits does not constitute ‘cruel and unusual punishment' sufficient to support an Eighth Amendment claim.”), report and recommendation adopted, 2023 WL 6386501 (C.D. Cal. Sept. 28, 2023); see also Charles v. Dir., TDCJ, No. 6:22-CV-65 (JCB) (JDL), 2022 WL 1651926, at *4 (E.D. Tex. Feb. 22, 2022) (“[W]hile failure to count [petitioner's] good time toward his parole eligibility date . . . may be a disappointment, it falls well short of the level of cruel and unusual punishment, particularly in light of his lack of a liberty interest in receiving parole or good time credits at all.”).
Petitioner cannot establish any of his claims. As explained above, the BOP properly aggregated Petitioner's consecutive sentences in assessing his eligibility for FSA credit and properly concluded Petitioner is ineligible to earn FSA time credits due to the § 1791 conviction. Therefore, the undersigned recommends that Respondent's Motion for Summary Judgment be granted and the Petition dismissed.
IV. RECOMMENDATION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 12) be GRANTED and that the Petition be DISMISSED.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, 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 & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).