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Webb v. Figiel

United States District Court, N.D. West Virginia

March 27, 2017

KEITH BRYAN WEBB, Petitioner,
v.
STEVEN FIGIEL, Acting Warden, Respondent.

          MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND OVERRULING THE PETITIONER’S OBJECTIONS

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         At issue is the petition of the pro se[1] petitioner, a federal prisoner, filed under 28 U.S.C. § 2241 (“§ 2241”). The petitioner was convicted in the United States District Court for the Western District of Texas of second degree murder in violation of 18 U.S.C. § 1111 and two counts of injury to a child in violation of 18 U.S.C. §§ 7 and 13 and Texas Penal Code § 22.04(a). In 1986, that court sentenced the petitioner to life imprisonment and two terms of thirty years imprisonment, all to be served concurrently. The petitioner’s first parole hearing was conducted in June 1993, and the United States Parole Commission (the “Commission”) denied the petitioner parole. Statutory interim hearings have been conducted every two years since his first parole hearing, none of which has resulted in a change since the July 1993 decision.

         On April 28, 2008, the Commission conducted the petitioner’s fifteen year reconsideration hearing, which, pursuant to the Commission’s rules, was conducted as a de novo evaluation of the petitioner’s case looking at his entire incarceration as if it were a new initial hearing. After the petitioner’s fifteen year reconsideration hearing, the Commission ordered that the petitioner serve the expiration of his sentence, and the National Appeals Board affirmed the Commission’s decision on administrative appeal. Since the reconsideration hearing, the petitioner has continued to receive his biannual statutory interim hearings, and the Commission has not ordered at any of those hearings any change to its prior order that the petitioner serve the expiration of his sentence.

         On January 16, 2014, the Commission conducted a mandatory parole hearing pursuant to 18 U.S.C. § 4206(d). As a result of that hearing, the Commission denied mandatory parole. The petitioner administratively appealed the decision, and the National Appeals Board affirmed the Commission’s decision.

         On January 5, 2016, the Commission attempted to conduct a statutory interim hearing for the petitioner, but the petitioner was uncooperative and refused to answer any of the examiner’s questions. Eventually, the petitioner stood up and walked out of the hearing room, at which point the examiner informed him that his leaving would be considered a waiver of parole and he would have to reapply to be placed back on the docket. The Commission issued a notice of action of January 27, 2016, which stated that the petitioner’s failure to meaningfully participate in the interim hearing operated as a waiver of the hearing.

         On March 31, 2016, the petitioner filed a petition for habeas corpus under 28 U.S.C. § 2241. In the petition, the petitioner alleges that (1) he is actually innocent of the crime of second degree murder because he was not indicted for that offense, (2) the Commission is unlawfully detaining him in violation of 18 U.S.C. § 4206(d), and (3) the Commission’s failure to grant him parole constitutes cruel and unusual punishment. For relief, the petitioner seeks immediate release from federal custody. After a preliminary review of the file, the magistrate judge entered an order to show cause directing the respondent to show cause why the writ should not be granted.

         The respondent then filed a motion to dismiss or, in the alternative, for summary judgment. The respondent argues that (1) the petitioner’s innocence claim is an abuse of the writ and an improper claim under § 2241, and (2) the petitioner is not entitled to parole. The petitioner then filed his Roseboro response.

         United States Magistrate Robert W. Trumble then entered a report and recommendation. In that report and recommendation, the magistrate judge recommends granting the respondent’s motion to dismiss or, in the alternative, for summary judgment and denying the petitioner’s motion for expedited relief, motion for release on personal recognizance, and motion for judgment on the pleadings. The magistrate judge also recommends that the petition for writ of habeas corpus be denied and dismissed with prejudice.

         The petitioner timely filed objections. Additionally, after the magistrate judge entered the report and recommendation, the petitioner filed motions for transfer of this civil action to the United States District Court for the Middle District of Pennsylvania. The petition explains in his motions for transfer that he has been transferred from FCI-Gilmer in West Virginia to USP-Allenwood in White Deer, Pennsylvania.

         For the reasons set forth below, the report and recommendation of the magistrate judge is affirmed and adopted, the petitioner’s objections are overruled, and the petitioner’s motions to transfer are denied.

         II. Applicable Law

         Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge’s recommendation to which an objection is timely made. Because the petitioner filed objections to the report and recommendation, the magistrate judge’s recommendation will be reviewed de novo as to those findings to which the petitioner objected. As to those findings to which objections were not filed, all findings and recommendations will be upheld unless they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). As the Supreme Court of the United States stated in United States v. United States Gypsum Co., “a finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and ...


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