United States District Court, S.D. New York
November 17, 2005.
KHIN C. THONG, Petitioner,
FREDERICK MENIFEE, Warden, Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION AND ORDER
Khin C. Thong ("Thong") filed this petition pro se for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241 on July 23, 2004.
On August 11, 2004, this Court ordered the respondent to answer
the petition and referred the action to Magistrate Judge Kevin N.
Fox for the preparation of a Report and Recommendation pursuant
to 28 U.S.C. § 636(b). On September 26, 2005, Judge Fox issued
his Report and Recommendation (the "Report") to this Court. Judge
Fox's chambers mailed the Report to petitioner at his last known
address at FCI McKean, in Bradford, Pennsylvania. The Report was
returned to Judge Fox's chambers by the U.S. Postal Service.
After determining that Thong had been transferred to FCI Fort
Dix, in Fort Dix, New Jersey, Judge Fox's chambers mailed the
Report to Thong there on October 11, 2005.
Thong argued that the U.S. Bureau of Prisons ("BOP") had
incorrectly calculated his statutory good conduct time ("GCT")
credit under 18 U.S.C. § 3624 (b) (1) and the regulations
established thereunder. The statute provides, in relevant part:
[A] prisoner who is serving a term of imprisonment of
more than 1 year other than a term of imprisonment
for the duration of the prisoner's life, may receive
credit toward the service of the prisoner's sentence,
beyond the time served, of up to 54 days at the end
of each year of the prisoner's term of
imprisonment, beginning at the end of the first year
of the term. . . . [C]redit for the last year or a
portion of a year of the term of imprisonment shall
be prorated and credited within the last six weeks of
Id. (emphasis added). Thong contended that "term of
imprisonment" according to which GCT should be calculated means
the sentence imposed by the sentencing court, such that the total
GCT credit for which a prisoner was eligible would equal the
number of years to which he had been sentenced multiplied by 54.
The government maintained that the phrase refers to actual time
served. Under petitioner's reading, the reference in the statute
to proration of credit for the last year of a sentence would
otherwise make no sense, and prisoners would receive GCT credit
for time they never actually served in prison.
After conducting a close examination of the statute and the
applicable BOP regulations and a survey of the relevant case law,
Judge Fox recommended that this Court deny Thong's petition. As
indicated by Judge Fox in his Report and pursuant to Rule 72,
Fed.R.Civ.P., the petitioner and respondent had ten days in
which to file objections to the September 26 Report, which was
mailed to petitioner at his current address at October 11. No
objections by either party have been filed to date. DISCUSSION
In reviewing the Report, a reviewing court "may accept, reject,
or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. § 636 (b) (1) (C). "To
accept the report and recommendation of a magistrate, to which no
timely objection has been made, a district court need only
satisfy itself that there is no clear error on the face of the
record." Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169
(S.D.N.Y. 2003) (citing Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)). See also Pizarro v. Bartlett,
776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is
"not facially erroneous").
Having reviewed the Report, I find no facial errors in it. I,
therefore, accept and adopt the Report. The Clerk of Court shall
dismiss this petition and close the case. No certificate of
appealability shall issue. Thong made no objections to the
Report, and as the Report having advised him that failure to
object will preclude appellate review of this Opinion and Order,
he has waived his right to appeal. DeLeon v. Strack,
234 F.3d 84, 86 (2d Cir. 2000).
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