Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. Saad

United States District Court, S.D. West Virginia

September 25, 2019

CARMEN JOHNSON Petitioner,
v.
WARDEN SAAD, Respondent.

          MEMORANDUM OPINION AND ORDER

          DAVID A. FABER, SENIOR UNITED STATES DISTRICT JUDGE

         By Standing Order, this action was referred to United States Magistrate Judge Omar J. Aboulhosn for submission of findings and recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Aboulhosn submitted to the court his Proposed Findings and Recommendation (“PF&R”) on August 21, 2018, in which he recommended that the court deny petitioner’s petition for writ of habeas corpus, and remove this case from the court’s active docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), petitioner was allotted fourteen days and three mailing days in which to file any objections to Magistrate Judge Aboulhosn’s Findings and Recommendation. The failure of any party to file such objections within the time allowed constitutes a waiver of such party’s right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989). On September 6, 2018, petitioner, acting pro se, filed objections to the PF&R. See ECF No. 22. As such, her objections were timely.

         Liberally construing petitioner’s objections, the court finds that petitioner’s motion sets forth three primary objections. First, petitioner objects to the PF&R’s conclusion that she failed to exhaust her administrative remedies. See Id . at ¶ 1. Second, petitioner objects that she informed respondent as to her unique pre-release placement preferences nineteen months before her good time date, but that respondent did not incorporate her personal circumstances and preferences in its final pre-release placement decision. See id. at ¶ 2. Third, petitioner objects that respondent did not properly consider petitioner’s mental health and personal concerns related to reentry, as respondent did not complete a Mental Health Re-Entry Plan or Residential Re-Entry Plan. See id.

         I. Standard of Review of Pro Se Objections

         Pursuant to Fed.R.Civ.P. 72(b), the court must “make a de novo determination upon the record . . . of any portion of the magistrate judge's disposition to which specific written objection has been 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. See Thomas v. Arn, 474 U.S. 140, 149–50 (1985). Furthermore, de novo review is not required and unnecessary “when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47–48 (4th Cir. 1982); see also United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007) (“[T]o preserve for appeal an issue in a magistrate judge's report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.”); McPherson v. Astrue, 605 F.Supp.2d 744, 749 (S.D.W.Va. 2009) (“[F]ailure to file a specific objection constitutes a waiver of the right to de novo review.”).

         “A document filed pro se is ‘to be liberally construed.’ ” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Specifically as to objections to a PF&R, courts are “under an obligation to read a pro se litigant's objections broadly rather than narrowly.” Beck v. Comm'r of Internal Revenue Serv., 1997 WL 625499, at *1-2 (W.D. N.C. June 20, 1997) (citing Orpiano, 687 F.2d at 48). However, objections that are “unresponsive to the reasoning contained in the PF&R” are irrelevant and must be overruled. Kesterson v. Toler, 2009 WL 2060090, at *1 (S.D.W.Va. July 7, 2009) (citing Orpiano, 687 F.2d at 47).

         II. Analysis

         A. Objection 1 – Exhaustion of Administrative Remedies

         Petitioner objects to the PF&R’s finding that she failed to exhaust her administrative remedies. However, the PF&R found in petitioner’s favor on this issue. See ECF No. 20 (“[T]he undersigned cannot conclude that Petitioner failed to exhaust her administrative remedies.”). Petitioner’s objections related to the PF&R’s findings as to her administrative remedies are therefore unresponsive to the PF&R and are irrelevant, see Kesterson, 2009 WL at *1, and must be OVERRULED.

         B. Objection 2 – Failure to Consider Personal Circumstances

         Petitioner’s second objection is that respondent did not incorporate her personal circumstances and preferences in its final pre-release placement decision as required by the Second Chance Act. See ECF No. 22, at ¶ 2. The Bureau of Prisons (“BOP”) has the authority to designate a prisoner's place of imprisonment, which includes authority to make all pre-release placement decisions. See 18 U.S.C. § 3621. Section 3621(b) requires the BOP to consider five factors when determining a prisoner's placement: (1) the resources of the facility contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristic of the prisoner; (4) any statement by the court that imposed the sentence; and (5) any pertinent policy statement issued by the Sentencing Commission pursuant to Section 994(a)(2) and Title 28. Id. § 3621(b).

         The Second Chance Act permits the BOP to allow a prisoner to serve a portion of his or her sentence in the community, such as in home confinement, placement in a community correctional facility, or in a Residential Re-Entry Center (“RRC”). See Id . § 3624(c). The Second Chance Act also requires that the BOP issue new regulations designed to ensure that such pre-release placements are “(A) conducted in a manner consistent with Section 3621(b) of this title; (B) determined on an individual basis; and (C) of sufficient duration to provide the greatest likelihood of successful reintegration into the community.” Id. § 3624(c)(6).

         Therefore, together, Sections 3621(b) and 3624(c) require the BOP to make pre-release decisions on an individualized basis by considering each of the five factors with respect to the individual prisoner, and with the end of providing the greatest likelihood of successful reintegration of the prisoner into the community. Once a court is satisfied that the BOP considered all five factors on an individualized basis, the BOP’s placement decision is given “considerable discretion.” Byrd v. Moore, 252 F.Supp.2d 293, 300 (W.D. N.C. 2003) (‚ÄúSection 3621 endows the BoP ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.