United States District Court, D. Colorado
ORDER ADOPTING MAGISTRATE'S RECOMMENDATION AND DISMISSING CASE
RAYMOND P. MOORE, District Judge.
This matter is before the Court on U.S. Magistrate Judge Boyd N. Boland's Recommendation ("Recommendation") (ECF No. 29) that this Court deny Petitioner Tyrone Richard Allen's Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the "Application"). Mr. Allen ("Petitioner") filed timely Objections to the Recommendation (the "Objections"). (ECF No. 32.) For the reasons stated below, the Objections are OVERRULED, the Recommendation is ADOPTED, and the Application is hereby DENIED.
I. LEGAL STANDARD
A § 2241 habeas proceeding is "an attack by a person in custody upon the legality of that custody, and... the traditional function of the writ is to secure release from illegal custody." McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 811 (10th Cir.1997) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)) (internal quotation marks omitted). "A motion pursuant to § 2241 generally... [includes] 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." Hernandez v. Davis, 2008 WL 2955856, at *7 (D.Colo. July 30, 2008) (quoting Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001)) (internal quotations omitted). "A[n] [application] under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity...." Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996).
When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." In conducting its review, "[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the Magistrate Judge's recommendations and specific enough to enable the "district judge to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute." United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, "the district court may review a magistrate's report under any standard it deems appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed.R.Civ.P. 72 Advisory Committee's Note ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.").
Plaintiff is proceeding pro se; thus, the Court must liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however, cannot act as advocate for Plaintiff, who must still comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
II. FACTS AND PROCEDURAL HISTORY
The Court adopts and incorporates the factual and procedural history included within the Recommendation as if set forth herein. To the extent any additional facts are necessary for the Court's resolution of this matter, such facts are below.
On April 29, 2009, Petitioner was sentenced in the U.S. District Court for the Eastern District of Tennessee to the following: (1) a 71-month term of imprisonment based on his conviction for being a felon in possession of a firearm; (2) a 24-month term of imprisonment for a violation of supervised release imposed in a separate 1992 case; and (3) a 12-month term of imprisonment for a violation of supervised release imposed in a separate 2008 case. The sentencing court ordered that the supervised release violation terms would run concurrently with each other, but consecutively to the 71-month term for the firearm violation. The Bureau of Prisons (the "BOP") has calculated Petitioner's 71-month sentence as beginning on April 29, 2009, the date it was imposed. Petitioner received prior custody credit of 204 days against that sentence, for the period October 7, 2008 to April 28, 2009. The BOP has also awarded Petitioner good conduct credit towards his 71 month sentence. His most recent projected release date for the 71-month sentence is August 2, 2014, which takes into account his good conduct credit. His projected release date for the consecutive supervised release sentences is April 25, 2016.
Plaintiff filed this 28 U.S.C. § 2241 Application on May 24, 2013, asserting three claims for relief: (1) that he "is not receiving full jail time credit towards both of his sentences"; (2) that his "statutory release/completion of sentence is not being mandated correctly"; and (3) that "the BOP lacks any authority to alter the sentencing commands of a federal judge." (ECF No. 1 at 2-3.) Petitioner asks the Court to order the BOP to recalculate his sentence.
Petitioner's claims are based on information he acquired from the BOP in 2010 which is substantially different from that reported above-and substantially incorrect. According to the 2010 data submitted by Petitioner with his Application, the BOP initially reported to Petitioner that he served his 24-month supervised release sentence first-and discharged it-then was to serve an 83-month sentence (the 71-month firearms sentence and the 12-month supervised release sentence arising from the 2008 case).
This erroneous computation served to alter the sentence imposed by the sentencing court by making the two supervised release violation sentences consecutive to each other and to the firearms sentence as opposed to concurrent with each other but consecutive to the 71-month firearms sentence.
As Judge Boland noted in the Recommendation, the BOP recognized its error and advised Petitioner in January 2013 that his sentence computation had been adjusted in the manner outlined in the earlier factual recitation. Five months later, ...