Opinion
C/A No. 0:04-0276-17BD.
November 23, 2004
ORDER
This matter is before the court for review of the Magistrate Judge's Report and Recommendation made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02.
The 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. Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions of the report and recommendation to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).
The pro se petitioner, Joseph J. Schepis, Jr., is currently serving a 200-month sentence at the Federal Bureau of Prisons ("BOP") for the offense of possession of a firearm by a convicted felon. He brings this petition pursuant to 28 U.S.C. § 2241 contending that the BOP is violating his constitutional rights by not recalculating his Security and Classification ("SC") score to eliminate consideration of his prior state convictions. The claim appears to be properly before this court and it is undisputed that the petitioner has exhausted his administrative remedies.
The respondent filed a motion for summary judgment on July 1, 2004 to which the petitioner has replied. Additionally, the petitioner was advised of his right to file objections to the Magistrate Judge's Report and Recommendation. Within the time limits prescribed by the Local Rules, the petitioner filed a 4-page objection memorandum. The court has reviewed, de novo, the Report and the objections thereto.
The petitioner was advised by order of the Magistrate Judge of the necessity to respond to the motion pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975).
Essentially, the petitioner seeks to have his Security and Classification ("SC") score decreased so he will be eligible to be placed in a minimum security federal prison. He asserts that his prior 1979 criminal convictions in Washington State should no longer be considered in his SC score because he has received a Final Discharge for those convictions from the State of Washington.
The respondent argues that an inmate has no constitutional right to a particular security classification and that classification of inmates is a matter within discretion of prison officials. See Sandin v. Conner, 515 U.S. 472 (1995) and Sweet v. S.C. Dept. of Corr., 529 F.2d 854 (4th Cir. 1975). The respondent argues further that the petitioner is not under any hardship as a result of his present SC score and that the duration of his current conviction will not be affected.
The Magistrate Judge has prepared a detailed and comprehensive Report and Recommendation suggesting that the respondent's motion for summary judgment should be granted. The Magistrate opines that there is nothing improper about the BOP continuing to consider petitioner's state convictions in calculating petitioner's custody level. Despite having received a Final Discharge of his state convictions, the Magistrate Judge agrees that such Discharge means that the petitioner has successfully completed his parole. The Magistrate also finds no requirement in 5 U.S.C. § 552a that his prior state convictions may no longer be used in calculating the petitioner's custody level.
The court has carefully reviewed the record in this case, the applicable law, the Report and Recommendation, and the objections thereto and finds the Magistrate's suggested disposition is proper. For the foregoing reasons, the objections are overruled; the Report and Recommendation is incorporated herein by reference; and respondent's motion for summary judgment is granted.
IT IS SO ORDERED.