Opinion
CASE NO. 4:04-cv-162.
February 8, 2007
ORDER OPINION [Resolving Doc. No. 13]
On January 29, 2004, Petitioner Leonard Similien petitioned for a writ of habeas corpus. With his petition, Similien seeks credit for additional time served. [Doc. 1] On July 14, 2004, Defendant Mark A. Bezy, Warden of FCI Elkton, opposed the issuance of the writ. [Doc. 11.] Petitioner argues that he should receive credit for time served for a period of 152 days from January 15, 2002, to May 20, 2002. During this time, Petitioner was detained by the Bureau of Immigration and Customs Enforcement ("ICE") while awaiting exclusion proceedings. Petitioner contends that this confinement qualifies as "official detention" pursuant to 18 U.S.C. § 3585(b).
On April 20, 2004, this matter was referred to United States Magistrate Judge James S. Gallas pursuant to Local Rule 72.2. [Doc. 6.] On January 19, 2007, Magistrate Judge Gallas issued a Report and Recommendation that petitioner's motion as construed as a petition for habeas corpus under 28 U.S.C. § 2241 should be denied and dismissed. [Doc. 13.]
Specifically, Magistrate Judge Gallas found that the Supreme Court "has given deference to BOP interpretation of sentence administration statutes noting that the BOP is the agency charged with administering 18 U.S.C. § 3585(b)." See Reno v. Koray, 515 U.S. 50, 60 (1995). 18 U.S.C. § 3585(b) states that "A defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences . . ." The Bureau of Prisons Program Statement 5880.28, Sentence Computation Manual CCCA, establishes that a person detained by the INS while awaiting a deportation determination is not "in official detention" as required by 18 U.S.C. § 3585(b). See also Reno, 515 U.S. at 60-61. Given that (1) Similien was subject to ICE control, not the Bureau of Prisons; and (2) detention prior to an exclusion proceeding concerns a civil, not criminal action, Similien's request for credit for time served pursuant to 18 U.S.C. § 3585(b) lacks merit. Neither party has objected to Magistrate Judge Gallas' recommendations.
The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of the Report and Recommendation to which the parties have made an objection. 28 U.S.C. § 636(b)(1). Parties must file any objections to a Report and Recommendation within ten days of service. Failure to object within that time waives a party's right to appeal the Magistrate Judge's recommendation. FED. R. CIV. P. 72(a); see Thomas v. Arn, 474 U.S. 140, 145 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Absent objection, a district court may adopt the Magistrate Judge's report without review. Thomas, 474 U.S. at 149. Moreover, having conducted its own review of the parties' briefs on the issue, this Court agrees with the conclusions of the Magistrate Judge.
Accordingly, the Court adopts in whole Magistrate Judge Gallas' findings of fact and conclusions of law and incorporates them fully herein by reference. Therefore, the Court DENIES Petitioner's Petition for Writ of Habeas Corpus.
IT IS SO ORDERED.