United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE
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. 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.
FACTUAL AND PROCEDURAL HISTORY
Conviction and Sentence
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.
November 18, 2014, Petitioner entered a guilty
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.
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.
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.
Instant Proceedings Under 28 U.S.C. § 2241
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.
STANDARD OF REVIEW
Review of ...