The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on the Report and Recommendation ("Report") (Doc. 19) of Magistrate Judge Donald G. Wilkerson recommending that the Court deny petitioner Cuba Eugene Hopson's ("Hopson") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) and motions for summary judgment (Doc. 14).*fn1
After reviewing a magistrate judge's report and recommendation, the Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in the report. Fed. R. Civ. P. 72(b). The Court must review de novo the portions of the report to which objections are made. Id. "If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error." Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The Report recommends that the Court deny Hopson's petition for two reasons. First, the Report concludes that the petition is a successive petition that raises the same issues raised in an earlier § 2241 petition and that constitutes an abuse of the writ. Alternatively, the Report recommends that the Court dismiss Hopson's current petition because he failed to exhaust his administrative remedies.
Hopson objects to the Report's conclusion regarding exhaustion of administrative remedies. He also raises arguments as to the merits of his petition.
As for the portion of the Report recommending dismissal as a successive petition that constitutes an abuse of the writ, the Court reviews the matter for clear error. The Court finds the Report to be clearly erroneous and will therefore reject this portion of the report.
In this case, Hopson argues that the United States Parole Commission improperly forfeited credit towards Hopson's sentence for his "street time," that is, the time he had spent out of prison on parole, when it revoked his parole. Hopson had raised this "street time" forfeiture argument in connection with an earlier § 2241 petition. In the earlier case, however, he did not raise the argument in his § 2241 petition but instead waited to raise the arguments until he objected to a report and recommendation recommending denial of the petition. The Court noted in the earlier case that Hopson had waived the "street time" forfeiture argument by omitting it from his petition and raising it for the first time in his objection to the report and recommendation. The Court further declined to allow him to amend his petition to add the "street time" forfeiture argument because amendment would be futile in light of his failure to exhaust his administrative remedies. Hopson then filed the present petition raising the "street time" forfeiture argument the Court refused to let him raise in his earlier case, posing the question of whether such a successive petition is permitted.
The restrictions on second or successive petitions enacted in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), and codified at 28 U.S.C. § 2244(b) do not apply to petitions under 28 U.S.C. § 2241.*fn2
Romandine v. United States, 206 F.3d 731, 736 (7th Cir. 2000). Successive § 2241 are, however, limited by § 2244(a), which states:
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a ...