United States District Court, N.D. West Virginia, Martinsburg
ORDER ADOPTING REPORT AND RECOMMENDATION AND, IN THE
FIRST INSTANCE, DISMISSING PETITIONER'S INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM
M. GROH CHIEF UNITED STATES DISTRICT JUDGE
Adoption of Report and Recommendation
day, the above-styled matter came before the Court for
consideration of the Report and Recommendation
(''R&R'') of United States Magistrate
Judge Robert W. Trumble. ECF No. 27. Pursuant to this
Court's Local Rules, this action was referred to
Magistrate Judge Trumble for submission of a proposed
R&R. Magistrate Judge Trumble issued his R&R on April
20, 2018. In the R&R, he recommends that the
Petitioner's § 2241 petition [ECF No. 1] be denied
and dismissed without prejudice.
Standard of Review
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 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).
Failure to file timely objections constitutes a waiver of
de novo review and of a Petitioner's 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).
to Magistrate Judge Trumble's R&R were due within
fourteen plus three days of the Petitioner being served with
a copy of the same. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b). The R&R was mailed to the Petitioner by certified
mail on April 20, 2018. The Petitioner accepted service on
April 30, 2018. The Petitioner filed objections on May 16,
2018. ECF No. 29. Accordingly, the Court will review the
portions of the R&R to which the Petitioner objects
Petitioner challenges the execution of his sentence arguing
that the Bureau of Prisons improperly calculated his eligible
sentence reduction. Specifically, the Petitioner alleges that
the Residential Drug Abuse Program (“RDAP”)
administrator incorrectly stated that the Petitioner is
ineligible for a one-year sentence reduction upon completion
of RDAP. While the Petitioner acknowledges that he has not
completed RDAP, he claims that he declined treatment because
“without that [sentencing] credit, he wasn't
interested in participating in the drug treatment
program.” ECF No. 29 at 8. Moreover, although he has
admittedly not exhausted administrative remedies, he asserts
that “futility thereby excuses [him] from being
obligated to exhaust.” ECF No. 9 at 3.
Judge Trumble recommends dismissing the Petitioner's
claim because the Petitioner does not present an active case
or controversy. Additionally, Magistrate Judge Trumble states
that the Petitioner failed to exhaust administrative
remedies. The Petitioner makes two objections. First, he
states that he does present an active case or controversy
under Spokeo. ECF No. 29 at 7. Second, he argues
that he does not have to exhaust administrative remedies
because it would be “futile.” ECF No. 29 at 5.
However, the Court need not decide if the Petitioner must
exhaust administrative remedies because the Petitioner fails
to present an active case or controversy.
a party can invoke the jurisdiction of the federal courts,
the party must “satisfy the threshold requirement
imposed by Article III of the Constitution by alleging an
actual case or controversy.” City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983). This requires that the
party: (1) suffer an injury in fact; (2) that is traceable to
the challenged conduct of the defendant; and (3) that is
likely to be redressed by a favorable judicial decision.
Spokeo v. Robins, 136 S.Ct. 1540, 1547 (2016).
issue here is whether the Petitioner has suffered an injury
in fact. To demonstrate injury in fact, the Petitioner must
show that “he has sustained or is immediately in danger
of sustaining some direct injury.” Lyons, 461
U.S. at 102 (internal citations omitted). This injury must be
“both real and immediate, not conjectural or
hypothetical.” Id. (internal citations
omitted). For example, the Supreme Court has declined to find
injury in fact when the plaintiffs may proceed to
violate an unchallenged law and may be arrested and
charged with violations of the criminal law because, if the
plaintiffs are ever prosecuted, there are “available
state and federal procedures which could provide relief from
the wrongful conduct alleged.” Id. at 102-03.
the Petitioner has declined to participate in RDAP.
Accordingly, the Petitioner is not “immediately in
danger of sustaining some direct injury.” As in
Lyons, the Petitioner may suffer an injury
if he completes the program and if the
Bureau of Prisons denies him a sentence reduction. However,
before the Petitioner would suffer any injury, he would have
to enroll in and complete the 500 hour program. Upon
completion of the program, the Bureau of Prisons would have
to wrongly determine that the Petitioner is not eligible for
a sentence reduction. Only at that point, assuming arguendo
that (1) the Petitioner completed the RDAP program; (2) he
was eligible for a sentence reduction; and (3) the Bureau of
Prisons denied him a sentence reduction, would the Petitioner
have suffered an injury in fact.
Petitioner's claim becomes even more hypothetical when
considering that he has not exhausted any
administrative remedies. The Petitioner relies on a single
statement by the RDAP program administrator when arguing that
the prison will not, hypothetically, grant him a sentence
reduction. However, it is entirely possible that the Bureau
of Prisons would in fact grant the ...