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Reyes v. Entzel

United States District Court, N.D. West Virginia, Martinsburg

February 5, 2019

RAMON REYES, Petitioner,
v.
FREDERICK ENTZEL, Respondent.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On August 31, 2018, Petitioner Ramon Reyes, an inmate incarcerated at Hazelton FCI, acting pro se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241, regarding what he characterized as a failure by the Bureau of Prisons to follow its policies regarding his medical care, which failure he characterized as a jail or prison condition. ECF No. 1 at 1, 5.[1] On September 17, 2018, this Court entered an “Order to Show Cause” directing Respondent to file answer, motion or other responsive pleading. ECF No. 6. On October 12, 2018, Respondent filed a Motion to Dismiss, or in the Alternative, for Summary Judgment and a memorandum in support thereof. ECF Nos. 9, 10. On November 9, 2018, the Respondent filed a response in opposition to the motion to dismiss. ECF No. 13. The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the Petition be dismissed with prejudice.

         II. FACTUAL AND PROCEDURAL HISTORY

         A. Conviction and Sentence[2]

         On October 4, 2012, a sealed indictment issued in the Eastern District of Pennsylvania charged Petitioner in counts 1 through 8, 12 through 14, 17, 18, 20 and 21 with various felony offenses related to drug trafficking. ECF No. 29.

         On November 18, 2014, Petitioner entered a guilty plea[3] to certain counts of the indictment. On September 27, 2016, Petitioner was sentenced to 240 months imprisonment for conspiracy to distribute cocaine, distribution of cocaine, possession with intent to distribute cocaine within one thousand feet of a school, felon in possession of a firearm, and possession of a firearm in furtherance of a drug trafficking offense. ECF No. 10-1 at 3 ¶ 5, 9 - 10. Following sealed entry of judgment on October 13, 2016, Petitioner filed a notice of appeal on October 19, 2016. ECF Nos. 373, 374.

         The Third Circuit summarily affirmed Petitioner's conviction and sentence, in that Court's docket number 16-3935, on May 8, 2018. ECF No. 425. On August 8, 2018, Petitioner filed a motion to vacate, set aside or correct his sentence. ECF No. 426. That motion remains pending.

         B. Administrative Proceedings

         Although Petitioner has filed eight administrative remedy requests since entering BOP custody on November 7, 2016, he has not filed any administrative grievance to specifically challenge his medical care level designation or to request a transfer to a federal medical center. ECF No. 10-1 at 3 ¶ 6, 5 ¶ 9, 6 ¶ 13, 9.

         C. Instant Proceedings Under 28 U.S.C. § 2241

         Petitioner filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241, on August 31, 2018, wherein he requested that the court “order the BOP to properly classify [his] care level at level 4 and transfer [him] to a federal medical center without further delay.” ECF No. 1 at 8. In the memorandum in support of Respondent's motion to dismiss, Respondent argues: (1) that Plaintiff failed to exhaust his administrative remedies before filing the instant action; and (2) that Plaintiff's claim is not cognizable in a habeas corpus petition because his claim does not affect the fact or duration of his confinement. ECF No. 10 at 4, 8. In his reply, Petitioner (1) concedes that he failed to exhaust his administrative remedies, and requests that his failure to exhaust be excused, and (2) does not dispute that his claim does not affect the fact or duration of his confinement. ECF No. 13.

         III. STANDARD OF REVIEW

         A. Review of ...


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