United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND OVERRULING
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
pro se petitioner, Tion Kimbrough
(“Kimbrough”), a federal inmate formerly
incarcerated at F.C.I. Hazelton and now designated to U.S.P.
Leavenworth, filed a petition for habeas corpus under 28
U.S.C. § 2241. ECF No. 1. The action was referred to
United States Magistrate Judge James E. Seibert and then
reassigned to United States Magistrate Judge James P. Mazzone
for initial review and report and recommendation pursuant to
Local Rule of Prisoner Litigation Procedure 2. The magistrate
judge filed a report and recommendation recommending that
petitioner's § 2241 petition be dismissed without
prejudice for failure to exhaust administrative remedies. ECF
No. 13. The magistrate judge informed the parties that if
they objected to any portion of the report and
recommendation, they were required to file written objections
within 14 days after being served with copies of the
report. The petitioner filed objections. ECF No.
petition, petitioner asserts that the Federal Bureau of
Prisons has unlawfully computed his sentence and failed to
follow the state sentencing judge's stipulation regarding
the same. For relief, the petitioner requests that this Court
run one year of his state sentence concurrently with his
federal sentence so that he can benefit from his state court
sentence. ECF No. 1.
States Magistrate Judge James P. Mazzone entered a report and
recommendation. ECF No. 13. The magistrate judge noted that
when the petitioner completed his habeas petition on August
10, 2018, the petitioner acknowledged that he did not raise
the facts in relation to his petition in the prison's
internal grievance procedure. ECF No. 1 at 7. In addition,
the magistrate judge noted that on October 1, 2018, the
petitioner filed what purports to be evidence that he has
exhausted his administrative remedies. Specifically, the
magistrate judge found that it is clear from the exhibits
that petitioner did not begin the formal administrative
process until August 14, 2018, when he filed a BP-9 with the
warden. Further, the magistrate judge concluded that
petitioner's BP-10 was rejected by the Mid-Atlantic
Regional Office on September 19, 2018, and that there is no
evidence that petitioner re-filed the same within ten days as
directed, or that petitioner filed a BP-11 with the Central
Office. ECF No. 12-1. Therefore, the magistrate judge found
that it is clear that the petitioner did not exhaust his
administrative remedies before he filed the instant petition
on August 15, 2018. For the foregoing reasons, the magistrate
judge recommended that the petitioner's petition for
habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1)
be denied and dismissed without prejudice for the failure to
exhaust administrative remedies. ECF No. 13 at 7.
petitioner filed timely objections. ECF No. 14. At the time
of his objections, petitioner was designated to F.C.I.
Hazelton. In his objections, the petitioner states: “I
understand and know why [the Court] dismissed my [§]
2241, because I didn't [e]xhaust the whole Administrative
Remedy Process.” ECF No. 14 at 1. Petitioner further
states: “I know the whole Administrative Remedy Process
and I know that I needed to have that process done before
sending [the Court] my [§] 2241.” Id.
However, petitioner continues by asserting that he only has
access to one counselor who handles the administrative remedy
process, and that he has filed seven BP8's through the
system and has not once received a response. Petitioner adds
that his rights have been violated and he has not been able
to get staff to respond to his grievances because the
institution was under investigation. Id.
then filed a letter stating that he “went back and
started the administrative remedy process over, ” and
another letter updating his address and informing the Court
that he has been transferred to Leavenworth, Kansas. ECF Nos.
16, 17. In the second letter, petitioner states that he was
in the process of exhausting his administrative remedy and
asks if he can send his § 2241 petition to the Court
after he exhausts his administrative remedy. ECF No. 17.
Petitioner then filed another letter again explaining that he
was transferred and is attempting to exhaust the
administrative remedy process. ECF No. 18.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be affirmed and
adopted in its entirety.
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).
Because the petitioner filed objections to the report and
recommendation, the magistrate judge's recommendation
will be reviewed de novo.
Court has conducted a de novo review of the portion
of the magistrate judge's report and recommendation
concerning the plaintiff's failure to exhaust
administrative remedies and finds that the plaintiff's
failure to exhaust his administrative remedies cannot be
excused. As the magistrate judge correctly stated, courts
have enforced a longstanding policy favoring exhaustion
prerequisites in habeas corpus actions arising under §
2241 in order to promote important policies such as
developing the necessary factual background upon which the
petitioner's claim is based, allowing the Federal Bureau
of Prisons (“BOP”) the opportunity to exercise
its discretion and apply its expertise in this area,
conserving scarce judicial resources, giving the BOP a chance
to discover and correct its own possible error, and avoiding
deliberate disregard for the administrative process.
case, this Court finds that the petitioner has not exhausted
his administrative remedies. Further, exhaustion of
administrative remedies would clearly be appropriate in this
instance given that the BOP is charged with the
responsibility of sentence computation and has expertise in
this area. See UnitedStates v. Wilson, 503
U.S. 329, 112 S.Ct. 1351 (1992) (the Attorney General,
through the BOP, has the responsibility for administering
federal sentences); United States v. Lucas, 898 F.2d
1554 (11th Cir. 1990) (the power to grant jail time credit
lies exclusively with the Attorney General). Moreover, as the
magistrate judge ...