1We shall refer to the typed Motion attached to the form habeas petition as Doc. 1

hereinafter. 

2We note that the Petitioner has been granted leave to proceed in forma pauperis. (Doc.

3).

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CARLOS PEREZ, : CIVIL ACTION NO. 4:CV-05-1389

:

Petitioner : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

RONNIE HOLT, Warden, :

 :

:

Respondent :

 REPORT AND RECOMMENDATION

The Petitioner, Carlos Perez, an inmate at the Federal Correctional Institution at Schuylkill

(“FCI-Schuylkill”), filed this Petition for Writ of Habeas Corpus on July 11, 2005, pursuant to 

28 U.S.C. § 2241, naming as Respondent the Warden at FCI-Schuylkill. (Doc. 1). We note that

Petitioner has named the proper respondent, i.e. Warden at FCI-Schuylkill. See 28 U.S.C. 

§§ 2242 and 2243. Petitioner also attached a typed Motion for writ of habeas corpus to his form

petition as well as 15 Exhibits to his Petition. (Doc. 1).1

On August 2, 2005, Respondent submitted his Response and Exhibits in support thereof.

(Doc. 7). Petitioner filed a Traverse on August 24, 2005. (Doc. 7). The Petition is presently ripe

for disposition.2 

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 1 of 15
2

I. Background.

Petitioner claims that the federal Bureau of Prisons (“BOP”) has incorrectly calculated his

sentence since it did not afford him credit for the period of time from May 15, 2003 through

October 22, 2003, while he was in federal custody and still serving his New York State sentence.

(Doc. 7, p. 2). Petitioner claims that he was in federal custody since May 15, 2003, and that prior

to this time he was in New York State custody from May 16, 2002. Petitioner states that he was

sentenced in federal court on October 3, 2003, and that the BOP has refused to give him credit

towards service of his federal sentence from May 15, 2003 through October 22, 2003, despite his

having been in federal custody during this time. (Doc. 1, memo, pp. 3-4). 

Petitioner contends that, during the time he was serving a state sentence for a drug-related

state conviction, he was taken into federal custody on May 15, 2003 for indictment on illegal reentry related charges and processing in the federal system. Petitioner states that he remained in

federal custody until October 22, 2003, and then returned to New York State custody to complete

service of his state drug sentence. Petitioner states that in his October 3, 2003 federal sentence,

the court ordered that his federal sentence was to be concurrent with any unexpired term of

imprisonment that he was then serving. (Id., p. 4-5). Petitioner states that if his present habeas

petition is granted, he will receive credit for the time in which he was in federal custody pursuant

to a writ of “ad prosequendum.” (Id., p. 5). Petitioner claims that the BOP will not afford him

credit for the time he was in federal custody (pursuant to a writ of habeas corpus ad prosequendum)

prior to being returned to state custody to complete service of his state drug sentence. 

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 2 of 15
3

In his Memorandum, Petitioner also correctly states that his federal sentence was

imposed on “Oct. 3, 2003." (Doc. 1, memo, p. 5). 

3

Respondent’s record shows that on May 16, 2002, Petitioner was arrested by New York City

police for a drug offense. (Doc. 6, Ex. 1, P 6.). Petitioner remained in New York State primary

custody from May 16, 2002 forward. Petitioner was sentenced by a New York state court to a term

of imprisonment of 2 to 6 years. (Id.). New York gave Petitioner credit for the time he served from

May 16, 2002, the time he first came into state custody, forward. (Id., p. 7.). The maximum

expiration date of Petitioner’s New York State sentence is May 9, 2008. (Id. & attachment 1

thereto). 

Petitioner was indicted in United States District Court fo the Southern District of New York

for illegal reentry on February 28, 2003. (Id., p. 8.). While Petitioner was still primarily in the

custody of New York for service of his stated drug sentence, on May 15, 2003, he was taken into

federal custody pursuant to a writ of habeas corpus ad prosequendum with respect to the stated

federal illegal reentry charge. (Id., p. 9.). Petitioner entered a guilty plea in the United States

District Court on June 26, 2003. (Id. p. 9). Thereafter, Petitioner was in temporary federal custody

pursuant to the writ of habeas corpus ad prosequendum. (Id.). 

On October 3, 2003, Petitioner was sentenced in the United States District Court for the

Southern District of New York to thirty (30) months imprisonment and three (3) years supervised

release. (Id. & Att. 2).3 Petitioner remained in temporary federal custody pursuant to the writ of

habeas corpus ad prosequendum until October 15, 2003, at which time he was returned to the

primary custody of New York for continued service of his state drug sentence. (Id., p. 10.). It is

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 3 of 15
4

precisely this time that Petitioner was in federal custody pursuant to the writ of habeas corpus ad

prosequendum which he states was from “5-15-03 to 10-22-03" (which was actually until October

15, 2003), that he claims the BOP has not given him jail time credit. (Doc. 1, memo, p. 4). 

The federal sentencing Judgment and Commitment revealsthat Petitioner’s federal sentence

was to run concurrent with any unexpired terms of incarceration, i.e. his New York State sentence.

(Doc. 6, Ex. 1, ¶ 11 & Att. 2, p. 2). 

In order to comply with the federal sentence of Petitioner, the BOP designated the New

York Department of Corrections as the place of service of his federal sentence and calculated,

pursuant to 18 U.S.C. § 3585, the commencement of his federal sentence as October 3, 2003, the

date it was imposed. (Id.). The BOP then afforded Petitioner credit toward his federal sentence

from October 3, 2003 through the present, which we construe as being August 2005 the date of

execution of the BOP official’s Declaration, Doc. 6, Ex. 1. 

Petitioner and Respondent agree that after his federal sentencing, he was returned to state

custody in October 2003 to finish serving his New York State sentence. Petitioner was released on

his New York State sentence on My 9, 2004, via parole, and was then transferred into federal

custody to complete serving his federal sentence. (Id., p 12. ). Primary custody over Petitioner was

then transferred to the BOP. (Id.). 

Petitioner states that the BOP has refused to give him credit for the time he spent in federal

custody, notwithstanding his District Court’s sentencing Order directing that his federal sentence

was to run concurrent with any unexpired term of incarceration. Respondent has shown that

Petitioner‘s federal sentence was computed as beginning on October 3, 2003 in order to comply

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 4 of 15
4Petitioner has shown that he administratively exhausted his claim. (Doc. 1, Exs. 10-15). 

Further, Respondent does not assert failure to exhaust as a defense in this case. 

5

with his federal sentence mandate. Respondent and Petitioner both agree that Petitioner’s

projected release date with good time credit is December 6, 2005. (Doc. 6, p. 2 & Doc. 1, Ex. 9).

Petitioner states that he is still entitled to federal custody jail time credit from May 15, 2003,

to October 22, 2003, which he states will entitle him to immediate release from BOP custody.

Petitioner concedes that during this time he was in federal custody pursuant to a writ of habeas

corpus ad prosequendum and that he was returned to state prison for completion of his state

sentence thereafter, but contends that he was nevertheless in federal custody for this entire fivemonth period. (Doc. 7, p. 2).4

 

II. Discussion. 

A. Credit for Time Spent in Federal Custody

As mentioned, Petitioner seeks about a five-month jail credit for the time he spent on loan

from state prison in federal custody for prosecution of his federal charge pursuant to the District

Court’s sentence. Respondent advances one argument, namely that the Petition should be

dismissed since the Petitioner’s sentence was computed properly by the BOP. (Doc. 6, p. 4). As

noted, it is undisputed that Petitioner exhausted his administrative remedies provided by the BOP

with respect to his stated claim presented in his Petition. (Doc. 1, Exs. 10-15). 

As indicated, there is no dispute that Petitioner exhausted his BOP administrative remedies

with respect to the claim presented in his instant Petition regarding his challenge to the BOP’s

computation of his federal sentence as required. See Moscato v. Federal Bureau of Prisons, 98 F.3d

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 5 of 15
5As we stated above, the documents attached to the Petition as Exhibits 10-15 

demonstrate that Petitioner exhausted his administrative remedies regarding his improper

calculation of sentence claim. 

6This Court in Chambers stated as follows:

The sovereign which first arrests a defendant has primary jurisdiction

over him. Shumate v. United States, 893 F.Supp. 137 (N.D.N.Y. 1995),

citing Ponzi v. Fessenden, 258 U.S. 254, 260-61, 42 S.Ct. 309,

310-311, 66 L.Ed. 607 (1922) and In re Liperatore, 574 F.2d 78

(2d Cir. 1978). See also: Thomas v. Brewer, 923 F.2d 1361,

1365-67 (9th Cir. 1991).

. . . . .

6

757 (3d Cir. 1996) (It is well-settled that before a prisoner can bring a habeas petition under 

28 U.S.C. § 2241, administrative remedies must be exhausted).5 Further, we find that inasmuch

as Petitioner is challenging the BOP’s computation of his sentence and is not seeking modification

of his sentence imposed by the District Court, he can proceed in a §2241 habeas petition as

opposed to a 28 U.S.C. §2255 motion to modify sentence. See Chambers v. Holland, 920 F. Supp.

618, 620 (M.D. Pa. 1996), aff’d. 100 F. 3d 946 (3d Cir. 1996) (Table). 

Petitioner acknowledges, and Respondent has shown, that on May 15, 2003, he was

transferred from New York State custody to federal custody on a writ of habeas corpus ad

prosequendum and that he remained in federal custody until October 15, 2003. Petitioner seeks

a credit for these five months he spent in federal custody while he was loaned for federal

prosecution by the state prison. However, while Petitioner was in federal custody pursuant to the

writ, New York retained primary custody over him, and the federal government did not take

primary jurisdiction over him. See Chambers, 920 F. Supp. at 622.6 Petitioner did not come into

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 6 of 15
Primary jurisdiction remains vested in the state which first arrested

the defendant until that jurisdiction relinquishes its priority by, e.g.,

bail release, dismissal of the state charges, parole release, or

expiration of the sentence. United States v. Warren, 610 F.2d 680,

684-85 (9th Cir. 1980). See also: Roche v. Sizer, 675 F.2d 507, 510

(2d Cir. 1982) (holding that federal court relinquished jurisdiction

by releasing prisoner on bail). Primary jurisdiction over a state

prisoner ends and federal custody over him commences only

when the state authorities relinquish him on satisfaction or

extinguishment of the state obligation. Smith, 812 F.Supp. at 370,

citing Thomas v. Whalen, 962 F.2d 358, 361 n. 3 (4th Cir. 1992).

Producing a state prisoner under writ of habeas corpus ad

prosequendum to answer federal charges does not relinquish

state custody. Thomas v. Brewer, 923 F.2d at 1366-67.

See also: Salley v. United States, 786 F.2d 546, 547-48

(2d Cir. 1986) (defendant produced and sentenced in federal

court via writ of habeas corpus ad prosequendum did not begin

to serve consecutive federal sentence until delivered into

federal custody).

 

920 F. Supp. at 622. 

7The Ruggiano v. Reish Court stated that the type of “credit” under § 3585(b) is “awarded

for time served in detention for the same offense for which the defendant is ultimately

sentenced” and “may only be calculated by the BOP.” 307 F.3d 121, 132 (3d Cir. 2002). Our

Petitioner is seeking this type of credit (i.e., the time he was held for federal prosecution), and it

7

federal custody until May 9, 2004, when he undisputedly was paroled on his state sentence and

released from state prison and turned over to federal custody to continue serving his federal

sentence. (Doc. 6, Exhibit 1, pp. 3-4). As Respondent states, in compliance with Petitioner’s

federal sentence, Petitioner was calculated by the BOP as beginning to serve his federal sentence

on October 3, 2003, the date that it was imposed. 

In our case, the BOP did not give Petitioner credit under 18 U.S.C. § 3585(b), which is

within the BOP’s exclusive authority7, toward his federal sentence for the period of May 15, 2003

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 7 of 15
is within the BOP’s authority.

8

through October 2, 2003, “because that time was credited by New York authorities to Petitioner’s

state term of imprisonment.” (Doc. 6, Ex. 1, ¶ 15.). Here, Petitioner is seeking credit for the time

he spent held on his federal charge until his federal sentencing. This type of credit is within the

purview of the BOP. Petitioner, as discussed, is not entitled to further credit toward his federal

sentence for the time he was credited for serving his New York State sentence from May 15, 2003

to October 2, 2003 since he already received credit for this time by New York with respect to his

state sentence. (Id.). 

Following his federal sentence on October 3, 2003, Petitioner was returned to New York

custody on October 15, 2003, to continue the service of his state sentence. As in Chambers, New

York did not give up jurisdiction over Petitioner prior to his federal sentencing date (October 3,

2003). Petitioner remained in prison on his state sentence until May 9, 2004 (transfer to federal

custody to continue serving his federal sentence). Significantly, Petitioner has been given credit by

BOP toward his federal sentence from October 3, 2003, the date of imposition of it, through at

least August 2005. (Id., ¶ 11.). While Petitioner was transferred to federal custody pursuant to the

writ of habeas corpus ad prosequendum, primary jurisdiction over him remained with the state, as

we have noted. 

Petitioner contends that the BOP has improperly computed his sentence and that his federal

sentence should have been credited with the five months he spent out of state prison and held by

federal authorities for prosecution of his federal charge pursuant to the District Court’s sentence.

Since we have found that the credit which Petitioner seeks in this case is within the BOP’s authority

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 8 of 15
818 U.S.C. § 3585 provides:

(a) Commencement of sentence. -- A sentence to a term of

imprisonment commences on the date the defendant is

received in custody awaiting transportation to, or arrives

voluntarily to commence service of sentence at, the official

detention facility at which the sentence is to be served.

(b) Credit for prior custody. -- A defendant shall be given

credit toward the service of a term of imprisonment for any

time he has spent in official detention prior to the date the 

sentence commences --

(1) as a result of the offense for which the sentence was

imposed; or

(2) as a result of any other charge for which the defendant

was arrested after the commission of the offense for which

the sentence was imposed; that has not been credited against

another sentence.

9

pursuant to § 3585(b),8 and since we find that the BOP has correctly calculated his federal

sentence, we shall recommend that the Petition be denied. 

B. Mootness of Petition. 

As stated, it is undisputed that Petitioner’s projected release date from BOP custody was

December 6, 2005, via good conduct time. The record also indicates that Petitioner‘s projected

release date was December 6, 2005, via good conduct time. Doc. 6, Ex. 1, ¶ 14. Petitioner’s

evidence reveals the same. (Doc. 1, Ex. 9). Accordingly, the instant Habeas Petition, in which

Petitioner seeks, in part, his immediate release from BOP custody or release into INS (now BICE)

custody, may be moot. The record does not indicate if Petitioner was released on his federal

sentence on December 6, 2005, and is presently being detained by BICE for deportation

proceedings, as Petitioner requested. (Doc. 7, p. 4). 

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 9 of 15
10

Petitioner’s and Respondent’s evidence indicates that Petitioner’s projected release date has

passed and that his challenged sentence computation may be moot since he has now been

released. Since the Court was unable to determine, on the basis of the evidence that Petitioner’s

projected release date was December 6, 2005, whether he had been released from custody, we

have addressed the merits of this petition. On the issue of whether Petitioner is still in custody for

purpose of his § 2241 habeas petition, we simply bring it to the attention of the Court. 

Since Petitioner may now been released from BOP custody into BICE custody on December

6, 2005, as he requested in his Habeas Petition, the present Habeas Corpus Petition may be moot.

In Spencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court found that a petitioner’s release

in and of itself did not render moot his habeas petition. Rather, the Court stated that “[t]he more

substantial question ... is whether petitioner’s subsequent release caused the petition to be moot

because it no longer presented a case or controversy under Article III, § 2, of the Constitution.” Id.

at 7. In the present case, Petitioner sought habeas relief, claiming in part that he was not given full

credit for about five (5) months and requested his immediate release or that he be released into INS

custody fo removal proceedings. (Doc. 7, p. 4). Thus, Petitioner claimed he was being unlawfully

detained in BOP custody beyond his sentence. The question arises now as to whether Petitioner’s

claim is moot since he may no longer be detained by BOP and may no longer be in its custody.

In Spencer, the Court stated that “[t]he parties must continue to have a personal stake in the

outcome of the lawsuit. This means that, throughout the litigation, the Plaintiff must have suffered,

or be threatened with, an actual injury traceable to the Defendant and likely to be redressed by a

favorable judicial decision.” Id. (Citations omitted). Because Petitioner may not currently be

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 10 of 15
9We recognize that Petitioner Perez is a federal prisoner who filed a § 2241 habeas

petition, as opposed to a 2254 petition, who was serving an October 3, 2003 federal sentence, 

and is claiming that he did not receive jail credit for the time he spent in federal custody while

11

detained by BOP if he was released from custody on his projected release date, Petitioner’s release

from BOP custody may constitute an end to his challenged illegal excessive detention by BOP. The

parties have not filed any supplemental briefs addressing the issue of whether Petitioner is any

longer threatened with any actual injury traceable to the Respondent and likely to be redressed by

a favorable decision by this Court. Thus, if Petitioner has been released from BOP custody, there

may no longer be any case or controversy presented by Petitioner’s Habeas Corpus Petition. 

In his Habeas Petition, the Petitioner requested as relief that he be released from BOP

custody into BICE custody. (Doc. 7, p. 4). We are not aware if this was accomplished and if so,

if that means he will not still suffer from an actual injury from the Respondent now that he has been

released from BOP custody, and if there is no longer a case or controversy presented. 

The Petitioner’s claims may be moot if he is no longer being detained by BOP and there are

no longer any collateral consequences as a result of the BOP’s former detention of him. 

The Petitioner‘s present petition may be moot if he has been released from BOP custody

prior to the Court having addressed the merits of the Petition. Respondent states that Petitioner’s

projected release date was December 6, 2005, and, thus, he may no longer be in BOP custody.

(Doc. 6, p. 4). This Court in Coss v. Morgan, Civil No. 01-0878, M.D. Pa., also recognized that

since Petitioner Coss was no longer in custody or serving any sentence with respect to his

challenged state conviction, and since Petitioner had completed service of his sentence for his

challenged conviction in its entirety, the habeas petition was moot.9 

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 11 of 15
still serving his New York State sentence. However, § 2241(c) provides that a writ of habeas

corpus shall not extend to a prisoner unless he is in custody under authority of the U.S. 

12

In the case of Joseph v. Johns, 2005 WL 3447932 *2 (W.D. Pa.), the court stated as follows:

Essentially, this means that the Respondent has no authority over 

Petitioner any longer as his federal sentence of incarceration has fully 

expired and the Respondent is without power to correct any alleged 

error that occurred in the crediting of his federal sentence. 

The Court agrees that this case is moot.

"A case is moot when it is 'impossible for the court to grant any effectual relief whatever' 

to a prevailing party." 

In re Overland Park Financial Corp., 236 F.3d 1246, 1254 (10th Cir.2001) 

(quoting Church of Scientology v. United States, 506 U .S. 9, 12 (1992) 

(some internal quotations omitted). See also Fla. Ass'n of Rehab. Facilities, 

Inc. v. Fla. Dep't of Health & Rehabilitative Servs., 225 F.3d 1208, 1217 

(11th Cir.2000) ("A case is moot when it no longer presents a live 

controversy with respect to which the court can give meaningful relief.") 

(citations and internal quotation marks omitted). If events that occur

subsequent to the filing of a lawsuit or an appeal deprive the court of 

the ability to afford the plaintiff or appellant meaningful relief, then 

the case becomes moot and must be dismissed. De La Teja v. U.S.,

321 F.3d 1357, 1362 (11th Cir.2003). "Any decision on the merits of a 

moot case or issue would be an impermissible advisory opinion." 

Florida Ass'n of Rehab, Facilities, 225 F.3d at 1217. By this action, 

Petitioner sought to have credits issued against his federal sentence, 

resulting in his speedier release. See Section 2241 Petition at p. 3 ¶ 7 

and p. 6 at ¶ 8. However, because the Respondent has lost 

jurisdiction over Petitioner, the Respondent was thereby rendered 

unable to afford Petitioner any relief. Because no matter what order 

the District Court would issue to the Respondent, the Respondent, having 

no power over Petitioner, would be unable to effectuate any relief to 

Petitioner, the case is moot and must be dismissed. See Wilson v. 

United States Dep't of the Interior, 799 F.2d 591, 592 (9th Cir.1986) 

(holding that a case was moot because the named defendant could not 

be directed to do anything that would provide relief).

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 12 of 15
13

Even if the Respondent did have jurisdiction over Petitioner, the result 

would be the same. In his Section 2241 petition, what Petitioner essentially 

sought was release from his sentence of confinement in a speedier fashion. 

However, he has now already been released from that sentence. The court 

has no power to do anything to effectuate his speedier release given that 

he has already been released. Where a party has obtained all the relief 

sought by the time a court comes to rule on a request for relief, the 

case becomes moot and should be dismissed. Lowe v. Duckworth, 

663 F.2d 42, 43 (7th Cir.1981) ("When all the relief sought has been 

obtained, there no longer exists a live controversy, and the case must

be dismissed as moot."). Accord Lowary v. Lexington Local Bd. of Educ.,

854 F.2d 131, 133 (6th Cir.1988) ("If a party has already obtained all 

the relief sought on appeal, the case is moot and must be dismissed.") 

(citing DeFunis v. Odegaard, 416 U.S. 312, 316-17 (1974)); Althridge v. 

Quiggs, 852 F.2d 621, 624 (D.C.Cir.1988) ("It seems clear that Althridge 

has obtained all the relief he is entitled to demand, and accordingly that

his case is now moot.").

 

Regardless of whether Petitioner’s present Habeas Petition is now moot, or if collateral

consequences still exist from his federal sentence vis a vis his removal proceedings with BICE,

we have found that it should be denied on its merits. 

III. Recommendation.

Based on the foregoing, it is respectfully recommended that the petition for writ of

habeas corpus be denied. 

s/ Thomas M. Blewitt

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: January 18, 2006 

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 13 of 15
14

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CARLOS PEREZ, : CIVIL ACTION NO. 4:CV-05-1389

:

Petitioner : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

RONNIE HOLT, Warden, :

 :

:

Respondent :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated January 18, 2006. 

Any party may obtain a review of the Report and Recommendation pursuant to 

Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within ten (10)

days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all

parties, written objections which shall specifically identify the

portions of the proposed findings, recommendations or report to which

objection is made and the basis for such objections. The briefing

requirements set forth in Local Rule 72.2 shall apply. A judge shall

make a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made and may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge. The judge, however,

need conduct a new hearing only in his or her discretion or where 

required by law, and may consider the record developed before the

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 14 of 15
15

magistrate judge, making his or her own determination on the basis

of that record. The judge may also receive further evidence, recall

witnesses or recommit the matter to the magistrate judge with

instructions.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: January 18, 2006 

Case 4:05-cv-01389-JFM Document 8 Filed 01/18/06 Page 15 of 15