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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


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 the sentence.
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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