Burrell v. Martin ( 2019 )

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION ALONZO LANARD BURRELL PETITIONER v. CIVIL NO. 3:18-CV-448-HSO-JCG WARDEN E. MARTIN RESPONDENT ORDER OVERRULING PETITIONER’S OBJECTION [15], ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION [13], AND DENYING PETITION [1] FOR WRIT OF HABEAS CORPUS BEFORE THE COURT is Petitioner Alonzo L. Burrell’s Notice of Appeal [15] which the Court construes as an objection to United States Magistrate Judge John C. Gargiulo’s Report and Recommendation [13], which recommends denial of Petitioner’s Petition [1] for Writ of Habeas Corpus. After due consideration of the Report and Recommendation [13], the submissions of the parties, and relevant legal authority, the Court finds that Petitioner’s Objection [15] should be overruled, that the Magistrate Judge’s Report and Recommendation [13] should be adopted, and that Petitioner’s Petition [1] for Writ of Habeas Corpus should be denied. I. BACKGROUND On July 9, 2018, Petitioner Alonzo L. Burrell (“Burrell” or “Petitioner”) filed a Petition [1] for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Burrell argues that the Federal Bureau of Prisons (“BOP”) miscalculated the length of his federal sentence when it did not give him a greater credit for the time he served on his state sentences, which would make him immediately eligible for release. Pet. [1] at 9. Respondent Warden E. Martin (“Respondent”) asserts that the BOP correctly designated Petitioner’s federal sentence as running consecutively to one of his state sentences, which makes him eligible for release in November 2021. Mem. [9] at 4, 9. On August 23, 2019, United States Magistrate Judge John C. Gargiulo entered a Report and Recommendation [13], recommending that Petitioner’s Petition [1] for Writ of Habeas Corpus be denied based upon his finding that Petitioner’s sentence was correctly calculated. R. & R. [13]. Petitioner filed a Notice of Appeal challenging Judge Gargiulo’s recommendation with the United States Court of Appeals for the Fifth Circuit. Notice of Appeal [15]. The Fifth Circuit dismissed the appeal for lack of jurisdiction. Order [16]. Because Petitioner is proceeding pro se, this Court will broadly construe his attempt to appeal the Report and Recommendation [13] as a general objection to the Magistrate Judge’s findings. II. DISCUSSION Because Petitioner has filed an Objection [15] to the Magistrate Judge’s Report and Recommendation [13], this Court is required to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Longmire v. Gust, 921 F.2d 620, 623 (5th Cir. 1991) (party filing written objections is “entitled to a de novo review by an Article III Judge as to those issues to which an objection is made”). A court is not required to make new findings of fact in order to conduct a de novo review. 2 Warren v. Miles, 230 F.3d 688, 694-95 (5th Cir. 2000). Nor is a court required to reiterate the findings and conclusions of the Magistrate Judge. Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). The Court will interpret Petitioner’s attempt to appeal Judge Gargiulo’s Report and Recommendation [13] as a general objection. Because Petitioner is only asserting a single claim, that the BOP failed to give him proper credit for the state sentences which he served, the Court understands his Objection [15] to request reconsideration of Judge Gargiulo’s calculation of his sentence. As required by 28 U.S.C. § 636(b)(1), the Court has conducted an independent de novo review of the record. After this independent review of Petitioner’s Petition [1] for Writ of Habeas Corpus, Respondent’s Response [8] and Memorandum [9] in Opposition, and Petitioner’s Traverse [12], the Court finds that the BOP correctly calculated Petitioner’s release date as November 1, 2021. For the foregoing reasons, Burrell’s Objection will be overruled and the Court will adopt Magistrate Judge John C. Garguilo’s Report and Recommendation [13] as the opinion of this Court. III. CONCLUSION The Court concludes that Petitioner’s Objection [15] should be overruled, that the Magistrate Judge’s Report and Recommendation [13] should be adopted as the finding of the Court, and that Petitioner’s Petition [1] for Writ of Habeas Corpus should be denied. 3 IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Objection [15] filed by Petitioner Alonzo L. Burrell in this case is OVERRULED. IT IS, FURTHER, ORDERED AND ADJUDGED that the Magistrate Judge’s Report and Recommendation [13], entered in this case on August 23, 2019, is ADOPTED as the finding of this Court. Petitioner’s Petitioner [1] for Writ of Habeas Corpus is DENIED. The Court will enter a separate Final Judgment in accordance with Federal Rule of Civil Procedure 58. SO ORDERED AND ADJUDGED, this the 4th day of December, 2019. s/ Halil Suleyman Ozerden HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE 4