Kornegay v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Wheeling

RAYMOND KORNEGAY,

Petitioner,

Vv. CIVIL ACTION NO. 5:24-CV-199

Judge Bailey

WARDEN R. BROWN,

Respondent.

ORDER

The above-styled matter came before this Court for consideration of the Report and

Recommendation of United States Magistrate Judge Mazzone. [Doc. 7]. Pursuant to this

Court’s Local Rules, this action was referred to Magistrate Judge Mazzone for submission

of a proposed report and a recommendation (“R&R”). Magistrate Judge Mazzone filed his

R&R on December 23, 2024, wherein he recommends that the Petition be denied and

dismissed with prejudice. [Id. at 8] For the reasons that follow, this Court will adopt the

R&R.

|. BACKGROUND’ & STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 636(b)(1)(c), this Court is required to make a de novo

review of those portions of the magistrate judge’s findings to which objection is made.

However, the Court is not required to review, under a de novo or any other standard, the

' This Court fully adopts and incorporates herein the “Background” section of the

R&R. See [Doc. 7 at 2-3].

factual or legal conclusions of the magistrate judge as to those portions of the findings or

recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,

150 (1985). Nor is this Court required to conduct a de novo review when the party makes

only “general and conclusory objections that do not direct the court to a specific error in the

magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d

44, 47 (4th Cir. 1982).

In addition, failure to file timely objections constitutes a waiver of de novo review and

the right to appeal this Court’s Order. 28 U.S.C. § 636(b)(1); Snyder v. Ridenour, 889

F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.

1984). Pro se filings must be liberally construed and held to a less stringent standard than

those drafted by licensed attorneys, however, courts are not required to create objections

where none exist. Haines v. Kerner, 404 U.S. 519, 520 (1972); Gordon v. Leeke, 574

F.2d 1147, 1151 (4th Cir. 1971).

Here, objections to Magistrate Judge Mazzone’s R&R were due within fourteen (14)

days of receipt, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules

of Civil Procedure. Petitioner filed a Request for an Extension of Time [Doc. 9], which was

granted in this Court’s January 27, 2025 Order (Doc. 10]. Petitioner timely filed his Motion

of Objection to the Magistrate Judge’s Report and Recommendation [Doc. 11] and

accompanying Supplemental Motion [Doc. 11-1] on February 3, 2025. Accordingly, this

Court will review the portions of the R&R to which objection was filed under a de novo

standard of review. The remainder of the R&R will be reviewed for clear error.

ll. DISCUSSION

In the R&R, Magistrate Judge Mazzone opined that the Petition should be denied

and dismissed with prejudice. [Doc. 7 at 8]. Specifically, Magistrate Judge Mazzone writes

that he found the Petition in this case was extremely similar to the § 2241 petition that

petitioner filed with this Court earlier this year. [Id. at 6 (citing Kornegay v. Brown, Case

No. 5:24-cv-136, N.D.W.V., July 19, 2024)}. Magistrate Judge Mazzone notes that the

arguments in petitioner's current Complaint “are issues which have already been finally

determined and ruled upon by this Court, and further review is unnecessary.” [Id. at 7].

In his Objections, petitioner reiterates his arguments from the Petition, and

disagrees with Magistrate Judge Mazzone’s conclusions. See [Doc. 11 at 1-4]. Petitioner

also disagrees with the analysis in the Magistrate Judge’s R&R, stating that it “fails to

consider recent changes in recent case law” such as Loper Bright Enterprises v.

Raimondo, 603 U.S. 369, 144 S. Ct. 2244 (2024) and Woodley v. Warden, USP

Leavenworth, 2024 WL 2260904 (D. Kan. May 15, 2024).

This Court cited and explained Loper Bright Enterprises in its decision in

petitioner's previous case, “The decision in Loper Bright Enterprises only alters the

requirement of courts to defer to agencies in the interpretation of ambiguous statutes, and

does not invalidate reports and recommendations issued by courts.” Kornegay v. Brown,

Case No. 5:24-cv-136, [Doc. 12 at 3].

In Woodley, Woodley claimed he was entitled to an immediate transfer to

prerelease custody because the respondent and the Bureau of Prisons (“BOP”) violated

the governing federal statutes by failing to effect his immediate transfer to prerelease

custody. 2024 WL 2260904, at *1. The respondent in Woodley argued that “the place of

petitioner's confinement falls within the BOP’s discretion, with which this Court has no

authority to interfere.” Id. at *2. The respondent relied on two (2) statutes: 18 U.S.C. §

3624(b), which grants the BOP the authority to designate the place of a prisoner's

confinement and to transfer a prisoner to a different facility,? and 18 U.S.C. § 3624, which

addresses the transfer of a prisoner to prerelease custody.* See id.

Judge Lungstrum noted that “those statutes, by themselves, do not require the BOP

to transfer a prisoner to prerelease custody (for instance, at an RRC) as soon as that

prisoner is eligible for such placement, for the maximum allowable period of prerelease

custody. Rather, Section 3624 provides that the BOP must, to the extent practicable,

ensure that a prisoner spends ‘a portion’ of his final 12 months under conditions that will

prepare the prisoner for reentry into the community.” /d.

However, Judge Lungstrum pointed out that respondent had not addressed the

provisions of the FSA set forth in 18 U.S.C. § 3632 and the fact that Woodley had earned

Earned Time Credits (“ETCs”). fd. at *2-3. Judge Lungstrum then held:

Under a plain reading of this provision of the FSA, which includes the word

“shall”, the BOP is required to transfer a prisoner to prerelease custody or

supervised release if the prisoner is “eligible” as determined under

Subsection 3624(g). Under Section 3624(g), a prisoner is “eligible” if the

218 U.S.C. § 3621(b) also provides that “a designation of a place of imprisonment

under this subsection is not reviewable by any court.”

3 The Woodley court specifically addressed subsection 3624(c) and 3624(g). See

Woodley, 2024 WL 2260904, at *2.

prisoner has earned ETCs in an amount equal to the remainder of the

prisoner’s term of imprisonment, which remainder amount has been

computed, and the prisoner has met certain benchmarks for the assessed

risk of recidivism. See id. § 3624(g)(1). Respondent has conceded that

petitioner is eligible for placement in prerelease custody. Accordingly, the

FSA requires the BOP to place petitioner in prerelease custody.

Id. at *3. Judge Lungstrum found that “the BOP has no discretion to refuse or delay the

transfer of petitioner to prerelease custody.” /d. at *4. Ultimately, Judge Lungstrum

granted the petition because the BOP’s failure to transfer Woodley to prerelease custody

violated federal law. Id.

In Woodley, Judge Lungstrum hangs his hat on the fact that the respondent did not

address the provision of the FSA set forth in 18 U.S.C. § 3632, which includes the word

“shall.”

This Court, in a civil case involving an energy company, was vacated in part and

remanded in instructions over the Court’s interpretation of the word “shall” in the Clean Air

Act.4 See Murray Energy Corp. v. Adm’r of Env’t Prot. Agency, 861 F.3d 529 (4th

4 “At issue in [Murray Energy Corp.] is Section 321(a) of the [Clean Air Act

(“CAA”)], 42 U.S.C. § 7621(a), which directs the [Environmental Protection Agency] to

continuously evaluate the potential employment impact of CAA administration and

enforcement. Section 321(a) provides:

The [EPA] Administrator shall conduct continuing evaluations of potential

loss or shifts of employment which may result from the administration or

enforcement of the provision of this chapter and applicable implementation

plans, including where appropriate, investigating threatened plant closures

or reductions in employment allegedly resulting from such administration or

enforcement.

42 U.S.C. § 7621(a).” Murray Energy Corp., 861 F.3d at 532.

Cir. 2017). In Murray Energy Corp., the United States Court of Appeals for the Fourth

Circuit found that Section 321(a), which provides that the Environmental Protection Agency

(“EPA”) “shall conduct continuing evaluations of potential loss or shifts of employment

which may result from the administration or enforcement of the provision of [the CAA] and

applicable implementation plans, including where appropriate, investigating threatened

plant closures or reductions in employment allegedly resulting from such administration or

enforcement” does not impose on the EPA a specific and discrete duty amenable to

Section 304(a)(2)° review. 861 F.3d at 535-536 (emphasis added). Rather, the Fourth

Circuit held, “Section 321(a)—when read as a whole—imposes on the EPA a broad,

open-ended statutory mandate. ... The EPA is thus left with considerable discretion in

managing its Section 321(a) duty.” /d. at 536.

Here, Section 3632(d)(4)(C) reads in full:

(C) Application of time credits toward prerelease custody or supervised

release.--Time credits earned under this paragraph by prisoners who

successfully participate in recidivism reduction programs or productive

activities shall be applied toward time in prerelease custody or supervised

release. The Director of the Bureau of Prisons shall transfer eligible

prisoners, as determined under section 3624(g), into prerelease custody or

supervised release.

(emphasis added). Under Section 3624(g)(1), a prisoner is “eligible” if he or she

° Section 304(a)(2) of the CAA, 42 U.S.C. § 7604(a)(2), which in pertinent part

provides: “[A]ny person may commence a civil action on his own behalf ... against the

[EPA] Administrator where there is alleged a failure of the Administrator to perform any act

or duty under [the CAA] which is not discretionary with the Administrator.”

(A) has earned time credits under the risk and needs assessment system developed

under subchapter D (referred to in this subsection as the “System”) in an amount

that is equal to the remainder of the prisoner's imposed term of imprisonment;

(B) has shown through the periodic risk reassessments a demonstrated recidivism

risk reduction or has maintained a minimum or low recidivism risk, during the

prisoner's term of imprisonment;

(C) has had the remainder of the prisoner's imposed term of imprisonment

computed under applicable law; and

(D)(i) in the case of a prisoner being placed in prerelease custody, the prisoner--

(1) has been determined under the System to be a minimum or low risk to

recidivate pursuant to the last 2 reassessments of the prisoner; or

(Il) has had a petition to be transferred to prerelease custody or supervised

release approved by the warden of the prison, after the warden's

determination that--

(aa) the prisoner would not be a danger to society if transferred to

prerelease custody or supervised release;

(bb) the prisoner has made a good faith effort to lower their recidivism

risk through participation in recidivism reduction programs or

productive activities; and

(cc) the prisoner is unlikely to recidivate; or

(ii) in the case of a prisoner being placed in supervised release, the prisoner

has been determined under the System to be a minimum or low risk to

recidivate pursuant to the last reassessment of the prisoner.

18 U.S.C. § 3624(g)(1)(A}H{D).®

Section 3632—when read as a whole—imposes on the BOP a broad, open-ended

statutory mandate to do many things for inmates. The BOP is thus left with considerable

discretion in managing its Section 3632 duty. The BOP gets to, among other items, assess

an inmate’s risk of recidivism and needs, develop individualized reentry plans for inmates,

determine the appropriate classification and placement of inmates within the prison

system, manage and facilitate inmates’ participation in programs designed to address their

specific needs, provide incentives for inmates who engage in positive behavior or

successfully complete programs, make recommendations regarding sentence adjustments

based on inmates’ participation in programs and overall conduct, and collect and report

data on inmates’ participation in reentry programs and their outcomes to assess the

effectiveness of its policies and programs. By statute, it has already been found that “a

designation of a place of imprisonment under this subsection is not reviewable by any

court.” See 18 U.S.C. § 3621(b). Thus, this Court finds that Section 3632 does not impose

on the BOP a specific and discrete duty amenable to review by this Court. By rejecting the

analysis in Woodley, this Court is keeping in line with what other courts have been doing

regarding placement. This Court and others have found that determinations of whether to

release a prisoner to an RRC or home confinement are not reviewable. Winegar v.

Adams, No. 1:20-CV-246, 2021 WL 5629920, at *6 (N.D. W. Va. Nov. 3, 2021) (Mazzone,

The Court notes that, as Woodley acknowledges, the provisions in § 3624, unlike

§ 3632, are not subject to review under the Administrative Procedures Act. 18 U.S.C.

§ 2625.

M.J.), report and recommendation adopted, 2021 WL 5629480 (N.D. W.Va. Nov. 30, 2021)

(‘with respect to halfway house placement or home confinement, the petitioner is

requesting that this Court order the BOP to place her in an RRC for twelve months or, in

the alternative, place her on home confinement. This Court does not have the authority to

do so.”); Crum v. Young, 2021 WL 2843835, at *6 (S.D. W.Va. Jan. 27, 2021) (Eifert,

M.J.), report and recommendation adopted, 2021 WL 2434358 (S.D. W.Va. June 15, 2021)

(Volk, J.) (“while the First Step Act provides criteria for the BOP to consider when

designating an inmate to a place of imprisonment, it also states unequivocally that the

BOP’s designation is not subject to judicial review.”); United States v. Smith, 2019 WL

4016211, at *2 (W.D. Va. Aug. 26, 2019) (Moon, J.) (“While the Second Chance Act and

the First Step Act expand the BOP’s authority to place prisoners, they do not vest

placement authority in this Court.”) (citations omitted); United States v. Lowe, 2019 WL

3858603, at *2 (M.D. N.C. Aug. 16, 2019) (Tilley, J.) (“under the First Step Act, Lowe does

not have a right to be placed on home confinement or in a residential re-entry center;

instead, the BOP has the discretion to determine if those options are appropriate for

Lowe.”); Richardson v. Warden, Bennettsville FCI, 2021 WL 8323632, at *2 (D. S.C.

Nov. 10, 2021) (Rogers, M.J.), report and recommendation adopted as modified, 2022 WL

1184038 (D. S.C. Apr. 21, 2022) (Dawson, J.) (“To the extent Petitioner is requesting relief

of placement in home confinement under the First Step Act, the statute vests the authority

to place Petitioner in home confinement with the BOP, not the courts.”) (citations omitted).

The remaining cases cited by petitioner, Komando v. FCI Berlin, Warden, 2023 WL

4101457 (D.N.H. Apr. 23, 2023); Ramirez v. Phillips, 2023 WL 8878993 (E.D. Cal. Dec.

22, 2023); and Doe v. Fed. Bureau of Prisons, 2024 WL 455309 (S.D.N.Y. Feb. 5, 2024)

are not binding authority, and are not based on analogous circumstances.

Petitioner states that his “sole [contention] was that he was eligible for the application of

his earned time credits towards pre-release custody or halfway house placement based

on the amount of earned time credits that he had received for his participation in the

recidivism reduction [programs].” [Doc. 11 at 4]. As stated fully in Magistrate Mazzone’s

R&R, “because determinations under § 3624 are not subject to judicial review . . . the

petition is accordingly subject to dismissal.” [Doc. 7 at 8].

This Court agrees with Magistrate Judge Mazzone that the relief sought in this case is a

review of a decision not within the Court's power to review, therefore the Petition will be

denied and dismissed.

Ill. CONCLUSION

Aside from the arguments addressed herein, a de novo review of the record indicates that

the magistrate judge’s report accurately summarizes this case and the applicable law.

Accordingly, the magistrate judge’s report and recommendation [Doc. 7] is hereby

ORDERED ADOPTED for the reasons more fully stated in the magistrate judge’s report.

Petitioner's Response/Objections [Doc. 11] are OVERRULED and to the extent that

petitioner's letter submitted on October 30, 2024 [Doc. 6] is construed as a motion, it is

DENIED AS MOOT. The Petition [Doc. 1] is DENIED and DISMISSED WITH

PREJUDICE.

This Court further DIRECTS the Clerk to STRIKE this case from the active docket of this

Court.

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It is so ORDERED.

The Clerk is directed to transmit copies of this Order to any counsel of record and to mail

a copy to the pro se petitioner.

DATED: February 6, 2024.

hol BAILEY

UNITED STATES DISTRICT JUDGE

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