Opinion
C/A No. 0:04-0276-17BD.
October 19, 2004
REPORT AND RECOMMENDATION
This Petition for a writ of habeas corpus was filed on January 30, 2004, pursuant to 28 U.S.C. § 2241. Respondent filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on July 1, 2004. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on July 7, 2004, advising Petitioner of the importance of a motion for summary judgment and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case. Petitioner thereafter filed a written opposition to the motion for summary judgment on July 14, 2004. The Petition is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 19.02(B)(2)(c), D.S.C. Respondent has filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Discussion
On December 11, 1992, the Petitioner was sentenced to a total term of two hundred (200) months incarceration by the United States District Court for the District of South Carolina for the offense of Possession of a Firearm by a Convicted Felon ( 18 U.S.C. § 922(g) 18 U.S.C. § 924(a)). Petitioner is currently incarcerated at the Federal Correctional Institution (FCI) in Estill, South Carolina, and has a projected satisfaction date of December 27, 2006, via Good Conduct Time (GCT) Release. See Schepis v. Maldonado, C/A No. 0:03-3463-17BD ; see also Aloe Creme Laboratories, Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970) [This Court may take judicial notice of its own records.].Petitioner contends in this Petition that the Bureau of Prisons (BOP) is violating his constitutional rights by not recalculating his Security and Classification score to eliminate any consideration of his prior State of Washington convictions. Petitioner requests that his Security and Classification score be changed from eleven (11) points to seven (7) points, thereby making him eligible for placement in a low security federal institution. It is undisputed that the Petitioner has exhausted his administrative remedies, and that this claim is therefore properly before this Court. See Respondents' Motion to Dismiss, or in the alternative, for Summary Judgment, p. 4.
Petitioner's sentence has been calculated pursuant to BOP Program Statement 5100.07, Security Designation and Custody Classification Manual, dated September 3, 1999, which provides the guidelines used to place inmates in federal facilities commensurate with their security and program needs. See Respondent's Exhibit Two. Under this program statement, some of the criteria scored in order to determine an inmate's security designation and custody classification include: type of detainers, severity of current offense, type of prior commitments, history of escapes or attempts, history of violence, pre-commitment status, and expected length of incarceration. Respondent represents that the intent of the Security Designation and Classification system is to provide staff the opportunity to use professional judgment within specific guidelines to determine where inmates should serve their sentence. Under Program statement 5100.07, the type of prior commitments is one factor considered in determining an individual's custody level. See Respondents' Exhibit Two, p. 5. The score for type of prior commitments is determined by prior institution incarceration, and is based on the most severe offense behavior (using the Offense Severity Scale, Appendix B) which resulted in commitment. See Respondents' Exhibit Two, p. 5.
Petitioner's record reflects that he was convicted in Washington State on February 21, 1979 of Robbery in the First Degree (while armed), and Attempted Robbery in the First Degree (while armed), and was sentenced to a twenty (20) year term of incarceration. See Respondent's Exhibit Three, p. 3. On May 17, 1979, Petitioner was convicted in that same court for the offense of Rape in the Third Degree, and was sentenced to five (5) years imprisonment, concurrent to his twenty (20) year sentence. See Respondent's Exhibit Three, p. 8. Petitioner does not dispute these convictions, and concedes that Respondent initially had a right to calculate his custody level in the manner in which it was calculated based on his prison convictions. However, Petitioner now seeks a recalculation of his custody level based on his having purportedly received a Final Discharge from the State of Washington, which restored his civil rights. Petitioner specifically relies on the language in the Final Discharge, which states that Petitioner satisfactorily completed his parole, and that the State of Washington does "hereby release and discharge said person from any further or other punishment, penalty, or obligation by reason of said crime. . . ." See Attachment to Petition (Final Discharge Restoring Civil Rights).
The Court has reviewed Respondent's Exhibit Three (Petitioner's Presentence Investigation Report) in camera, and it has been filed as an exhibit in this case under seal.
The undersigned says "purportedly" because, although Respondent has not disputed Petitioner's claim that he has received a Final Discharge on these convictions, the Final Discharge provided to the Court as an attachment to the Petition is in the name of David Dwaine Darring, not the Petitioner.
Petitioner contends that he may no longer be "punished" for these state convictions pursuant to this Final Discharge, and that the BOP's "refusal to honor" this Final Discharge is keeping him at a higher custody level. Respondent argues that Petitioner is not being punished by his security and custody classification level, and that in any event he has no constitutional right to any particular custody level. Respondent also points out that Petitioner's sentence in the State of Washington was never vacated or overturned, and that all the Final Discharge document means is that he successfully completed his parole. The undersigned agrees.
Petitioner's prior state convictions have not been vacated or overturned, and there is nothing improper about the BOP continuing to consider these convictions in calculating Petitioner's custody level. Further, an inmate has no constitutional right to a particular security classification after he is incarcerated. Sandin v. Conner, 515 U.S. 472, 483-485 (1995); cf. Slezak v. Evatt, 21 F.3d 590 (4th Cir. 1994) [the Constitution vests no liberty interest in inmates retaining or receiving any particular security or custody status as long as the conditions or degree of confinement is within the sentence imposed]. Rather, classification of inmates is a matter within the discretion of prison officials. See generally Sweet v. South Carolina Department of Corrections, 529 F.2d 854, 859 (4th Cir. 1975) (en banc) [describing federal court's deference to prison administrators and all administrative matters unless the condition rises to the level of a constitutional violation];McCord v. Maggio, 910 F.2d 1248, 1250 (5th Cir. 1990). Finally, and contrary to Petitioner's claim, the undersigned can find no requirement in 5 U.S.C. § 552a, which relates to maintenance of records, that his prior state convictions may no longer be used in calculating his custody level. Hence, Petitioner has not shown that he is entitled to have his Security and Custody Classification recalculated based on a Final Discharge from the State of Washington restoring his Civil Rights.
Conclusion
Based on the foregoing, it is recommended that the Respondent's motion for summary judgment be granted, and that this Petition be dismissed.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Magistrate Judge's Report and Recommendation The Serious Consequences of a Failure to Do So
The parties are hereby notified that any objections to the attached Report and Recommendation (or Order and Recommendation) must be filed within ten (10) days of the date of its filing. 28 U.S.C. § 636 and Fed.R.Civ.P. 72(b). The time calculation of this ten-day period excludes weekends and holidays and provides for an additional three days for filing by mail. Fed.R.Civ.P. 6. Based thereon, this Report and Recommendation, any objections thereto, and the case file will be delivered to a United States District Judge fourteen (14) days after this Report and Recommendation is filed. Advance Coating Technology, Inc. v. LEP Chemical, Ltd., 142 F.R.D. 91, 94 n. 3 (S.D.N.Y. 1992). A magistrate judge makes only a recommendation, and the authority to make a final determination in this case rests with the United States District Judge. See Mathews v. Weber, 423 U.S. 261, 270-271 (1976); and Estrada v. Witkowski, 816 F. Supp. 408, 410 (D.S.C. 1993).During the ten-day period, but not thereafter, a party must file with the Clerk of Court specific, written objections to the Report and Recommendation, if he wishes the United States District Judge to consider any objections. Any written objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. Failure to file written objections shall constitute a waiver of a party's right to further judicial review, including appellate review, if the recommendation is accepted by the United States District Judge. See United States v. Schronce, 727 F.2d 91, 94 n. 4 (4th Cir.), cert. denied, Schronce v. United States, 467 U.S. 1208 (1984); and Wright v. Collins, 766 F.2d 841, 845-47 nn. 1-3 (4th Cir. 1985). Moreover, if a party files specific objections to a portion of a magistrate judge's Report and Recommendation, but does not file specific objections to other portions of the Report and Recommendation, that party waives appellate review of the portions of the magistrate judge's Report and Recommendation to which he did not object. In other words, a party's failure to object to one issue in a magistrate judge's Report and Recommendation precludes that party from subsequently raising that issue on appeal, even if objections are filed on other issues. Howard v. Secretary of HHS, 932 F.2d 505, 508-509 (6th Cir. 1991). See also Praylow v. Martin, 761 F.2d 179, 180 n. 1 (4th Cir.) (party precluded from raising on appeal factual issue to which it did not object in the district court), cert. denied, 474 U.S. 1009 (1985). In Howard, supra, the Court stated that general, non-specific objections are not sufficient:
A general objection to the entirety of the [magistrate judge's] report has the same effects as would a failure to object. The district court's attention is not focused on any specific issues for review, thereby making the initial reference to the [magistrate judge] useless. * * * This duplication of time and effort wastes judicial resources rather than saving them, and runs contrary to the purposes of the Magistrates Act. * * * We would hardly countenance an appellant's brief simply objecting to the district court's determination without explaining the source of the error.Accord Lockert v. Faulkner, 843 F.2d 1015, 1017-19 (7th Cir. 1988), where the Court held that the appellant, who proceeded pro se in the district court, was barred from raising issues on appeal that he did not specifically raise in his objections to the district court:
Just as a complaint stating only 'I complain' states no claim, an objection stating only 'I object' preserves no issue for review. * * * A district judge should not have to guess what arguments an objecting party depends on when reviewing a [magistrate judge's] report.See also Branch v. Martin, 886 F.2d 1043, 1046 (8th Cir. 1989) ("no de novo review if objections are untimely or general"), which involved a pro se litigant; and Goney v. Clark, 749 F.2d 5, 7 n. 1 (3rd. Cir. 1984) ("plaintiff's objections lacked the specificity to trigger de novo review"). This notice, hereby, apprises the parties of the consequences of a failure to file specific, written objections. See Wright, supra,; and Small v. Secretary of HHS, 892 F.2d 15, 16 (2nd Cir. 1989). Filing by mail pursuant to Fed.R.Civ.P. 5 may be accomplished by mailing addressed as follows:
Larry W. Propes, Clerk United States District Court
901 Richland Street Columbia, South Carolina 29201