Unpublished Dispositionguy Moody Woods, Petitioner-appellant, v. P. Keohane, Warden, Et. Al., Respondents-appellees, 838 F.2d 472 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 838 F.2d 472 (6th Cir. 1988)

Jan. 29, 1988


Before LIVELY, Chief Judge, NATHANIEL R. JONES and BOGGS, Circuit Judges.


ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner, a federal prisoner, appeals the judgment of the district court for the Western District of Tennessee which dismissed his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. Petitioner sought to compel the United States Parole Commission to set an immediate release date for him.

At the time petitioner filed his action, February 24, 1987, he was serving two consecutive fifteen year sentences for bank robbery. As a result of his cumulative sentence of thirty years imprisonment, petitioner was subject to a minimum of ten years incarceration before he would be eligible for parole. 18 U.S.C. § 4205(a). Therefore, petitioner's initial parole eligibility date was established as October 20, 1991. Petitioner, however, argued that 18 U.S.C. § 4205(a) no longer controlled his parole eligibility given the provisions of Sec. 235(b) (3) of the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837 (1984). On the magistrate's recommendation, and over the petitioner's objections, the district court dismissed petitioner's action without prejudice on the basis of Miller v. Story, 814 F.2d 320 (6th Cir. 1987).

We have thoroughly reviewed the record and the arguments on appeal. Based on our review, we conclude the district court properly dismissed the petition. The magistrate's report and recommendation properly relies on Miller and is in accordance with our recent decision in Farese v. Story, 823 F.2d 975 (6th Cir. 1987).

Accordingly, for the reasons contained in the magistrate's report and recommendation, as adopted by the district court, the judgment of dismissal entered on June 29, 1987, is hereby affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.