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Bailey v. Entzel

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

October 7, 2019

ANTWAIN BAILEY, Petitioner,
v.
FREDERICK ENTZEL, Respondent.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On March 29, 2019, Petitioner, an inmate incarcerated at Hazelton FCI, acting pro se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 1.[1] On May 23, 2019, the Respondent filed a motion to dismiss and memorandum in support thereof with exhibits attached thereto. ECF Nos. 13, 13-1 through 13-4. Petitioner filed a response on June 17, 2019. ECF No. 16.

         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 without prejudice.

         II. FACTUAL AND PROCEDURAL HISTORY

         A. Conviction and Sentence

         On January 12, 2017, Petitioner entered his plea of guilty to the felony of voluntary manslaughter in the District of Columbia Superior Court case number 2016-CF1-017676, under an information filed on that same date. https://www.dccourts.gov/superior-court/cases-online; ECF No. 13-2 at 2. On May 19, 2017, Petitioner was sentenced to a term of 156 months for his conviction. Id.

         B. Prison Disciplinary Proceedings

         On November 9, 2018, while Petitioner was incarcerated at Hazelton FCI, he was charged in incident report number 3190222, with refusal to provide a urine sample or breath test, in violation of Code 110. ECF Nos 1-1 at 1 - 2, 13-2 at 2.

         C. Instant § 2241 Petition

         As his sole ground for relief, Petitioner claims that BOP staff failed to timely provide him with a copy of his Discipline Hearing Officer (“DHO”) report, which failure he alleges violated his due process rights. ECF No. 1 at 5. Petitioner concedes that did not exhaust his claims through the prison's internal grievance procedure. ECF No. 1 at 7. Petitioner requests his conviction for violation of Code 110 be vacated and expunged from his central file, and that his custody level score be recalculated. Id. at 8.

         Respondent filed a motion to dismiss on May 23, 2019, which asserted that Petitioner failed to exhaust available administrative remedies. ECF No. 13. Petitioner's response filed June 17, 2019, did not address Respondent's argument that he failed to exhaust his claims. ECF No. 16.

         III. STANDARD OF REVIEW

         A. Review of Petitions for Relief

         Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and this Court's local rules, this Court is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving ...


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