Opinion
No. 11 Civ. 8825 (RJS) (FM)
05-21-2013
JOHN SMITH, Petitioner, v. FEDERAL BUREAU OF PRISONS, et al., Defendants.
ORDER ADOPTING REPORT AND
RECOMMENDATION
RICHARD J. SULLIVAN, District Judge:
Petitioner John Smith brings this action pursuant to 28 U.S.C. § 2241, challenging the execution of two concurrent sentences that were imposed by the United States District Court for the Eastern District of New York but which he is serving in this district. Specifically, Petitioner asserts that he was entitled to receive credit against his current sentences for time that he previously spent in prison because the conduct underlying all of the offenses of conviction is the same. Petitioner initiated this action by filing his Petition for a Writ of Habeas Corpus (the "Petition") on December 5, 2011. By Order dated December 19, 2011, this matter was referred to the Honorable Frank Maas, Magistrate Judge. Briefing on the Petition was completed on February 17, 2012 and was submitted under seal in order to protect Petitioner's identity. On July 3, 2012, Judge Maas issued a Report and Recommendation (the "Report) recommending that the Petition be denied because the Bureau of Prisons correctly applied the governing statute, 18 U.S.C. § 3585(b), in calculating Petitioner's sentence. In the Report, Judge Maas advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). No party has filed objections to the Report, and the time to do so has expired. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1993).
Petitioner, who is in the federal Witness Security Program, brings this action pseudonymously.
When no objections to a report and recommendation are made, the Court may adopt the report if there is no clear error on the face of the record. Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005); La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000). After reviewing the record, the Court finds that Judge Maas's well-reasoned Report is not facially erroneous. Accordingly, the Court adopts the Report in its entirety and, for the reasons set forth therein, denies the Petition. The Clerk of Court is respectfully directed to close this case. SO ORDERED. Dated: May 20, 2013
New York, New York
______________________
RICHARD J. SULLIVAN
UNITED STATES DISTRICT JUDGE