United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
FACTUAL AND PROCEDURAL HISTORY
Conviction and Sentence
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.
ECF No. 13-2 at 2. On May 19, 2017, Petitioner was sentenced
to a term of 156 months for his conviction. Id.
Prison Disciplinary Proceedings
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
Instant § 2241 Petition
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.
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.
STANDARD OF REVIEW
Review of Petitions for Relief
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