United States District Court, E.D. Kentucky, Southern Division, London
Gregory F. Van Tatenhove, United States District Judge
matter is before the Court upon Petitioner Dustyn
Montague's pro se petition for habeas corpus
relief under 28 U.S.C. § 2241. [R. 1.] Consistent with
local practice, the matter was referred to United States
Magistrate judge J. Gregory Wehrman, who filed a Report and
Recommendation explaining why Mr. Montague's motion
should be denied.
Federal Rule of Civil Procedure 72(b)(2), a petitioner has
fourteen days after service to register any objections to the
Report and Recommendation or else waive his rights to appeal.
In order to receive de novo review by this Court, any
objection to the recommended disposition must be specific.
Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
A specific objection “explain[s] and cite[s] specific
portions of the report which [counsel] deem[s]
problematic.” Robert v. Tesson, 507 F.3d 981,
994 (6th Cir. 2007). A general objection that fails to
identify specific factual or legal issues from the
Recommendation, however, is not permitted, since it
duplicates the magistrate's efforts and wastes judicial
economy. Howard v. Sec'y of Health & Human
Servs., 932 F.2d 505, 509 (6th Cir. 1991).
filed a number of timely objections to the Recommendation,
which are sufficiently specific to trigger de novo
review. See, e.g., Franklin v. Rose, 765
F.2d 82, 84-85 (6th Cir. 1985) (explaining the Court's
duty to review pro se filings under a more lenient
standard than the one applied to attorneys). The Court has
satisfied that duty, reviewing the entire record, including
the pleadings, the parties' arguments, relevant case law,
and statutory authority. For the following reasons,
Montague's objections will be OVERRULED.
2010, Mr. Montague was indicted in the Middle District of
Tennessee for being a felon in possession of firearms.
See United States v. Montague, Case No.
3:10-cr-00165-1 (M.D. Tenn.). At the time, Montague was
incarcerated on state charges, and the Government had to file
a motion for writ of habeas corpus ad prosequendum to arrange
for Montague's appearance at his arraignment proceeding.
[See R. 5 (M.D. Tenn.).] Montague appeared for an
initial appearance and arraignment proceeding on January 26,
2011, during which he requested to be returned to state
custody to finish the brief sentence he was serving there on
a state probation violation. [See R. 12 (M.D.
Tenn.).] The judge granted Montague's request, and he was
returned to state custody. [Id.] Several months
later, when Montague appeared for his rearraignment hearing,
the judge again ordered that Montague be returned to state
custody, with a federal detainer put in place. [R. 40 (M.D.
Tenn.).] Mr. Montague was ultimately sentenced on November
10, 2011, and his federal sentence began running as of that
date. [R. 48 (M.D. Tenn.).]
the Court's record does not reflect when, exactly, the
Bureau of Prisons' Sentencing Monitoring Computation Data
sheet suggests Montague was not moved from a state facility
to a federal BOP facility until January 11, 2012. [R. 1-2 at
17.] However, the data sheet clearly states two facts that
are key to this proceeding: (1) Mr. Montague's federal
time began running on November 10, 2011, notwithstanding the
facility wherein he was incarcerated; and (2) Mr. Montague
has already been credited with time served from September 16,
2011, through November 9, 2011, the day before he received
his federal sentence. [See R. 1-2 at 17-18.]
Montague has filed a petition for relief under 28 U.S.C.
§ 2241, wherein he challenges the BOP's award of
credit for time served and argues he should be awarded time
served from January 26, 2011, through January 11, 2012.
[See R. 1.] Judge Wehrman filed a Report and
Recommendation addressing Montague's claims and
ultimately recommending the § 2241 petition be denied.
The Court now reviews Montague's objections to the Report
review, the Court agrees with the Magistrate Judge that Mr.
Montague's § 2241 petition should be denied.
Montague raises a number of objections to Judge Wehrman's
Report and Recommendation, a number of which provide no legal
basis for relief. For example, Montague first objects to
Judge Wehrman's use of the word “unusual” to
describe the Tennessee federal court's order.
[See R. 10 at 1.] While Montague may disagree with
the Magistrate Judge's word choice, this objection has no
impact on the overall outcome of the case.
Montague objects to the Report and Recommendation's
finding that the actual dispute over time served involves the
time period between January 2011 and September 2011.
[See R. 10 at 3.] As Judge Wehrman accurately
explained, however, the Bureau of Prison's sentence
monitoring and computation data sheet shows that Montague
has, in fact, already been credited with time served
beginning September 16, 2011. [R. 1-2 at 17-18.] Accordingly,
Montague's argument regarding credit from September 2011
through January 11, 2012, is moot. The only period in
question is from January 26, 2011, until September 15, 2011,
during which time the record reflects Montague was
incarcerated on an unrelated state matter.
Montague once again attempts to argue that his state and
federal cases were related for purposes of a concurrent
sentence, this argument is unavailing. [See R. 13 at
2.] The record clearly reflects the two sentences involved
unrelated conduct. According to the plea agreement in
Montague's federal case, his federal crime stemmed from
an undercover purchase of firearms conducted by an ATF agent
on or about January 22, 2010. Montague's state case,
however, involved a burglary conviction in Davidson County on
or around February 12, 2009. [See R. 37 at 10-11
also maintains the Magistrate Judge ignored the specific case
law he cited in his motion. While Mr. Montague did not
reference any case law in his § 2241 petition or his
memorandum of law in support of that petition [R. 1; R. 1-1],
various cases are referenced in the eighteen pages of
exhibits attached to the petition. [See R. 1-2 at
5.] The Magistrate Judge did not specifically cite to all of
the cases Montague mentioned, but the Court finds no error in
this. Judge Wehrman adequately discussed and applied relevant
case law. As for the only case cited by Montague in his
objections, Stamphill v. Johnston, the analysis
remains the same. That case is a 1943 decision from the Ninth
Circuit Court of Appeals which addresses a different legal
question than the one presently before the Court.
[See R. 13 at 2 (citing Stamphill v.
Johnston, 136 F.2d 291 (9th Cir. 1943).]
end, the Court finds that Mr. Montague's objections
provide him no basis for relief. After reviewing the matter
de novo, the Court determines Montague was serving
time for an unrelated state sentence until September 16,
2011, but that, on that date, he began receiving credit for
his federal time served. The Court ultimately agrees with the
rationale set forth in Judge ...