United States District Court, N.D. West Virginia, Martinsburg
REPORT AND RECOMMENDATION
W. TRUMBLE UNITED STATES MAGISTRATE JUDGE.
December 17, 2018, 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 August 7, 2019, the Respondent filed a motion to dismiss
and memorandum in support thereof with exhibits attached
thereto. ECF Nos. 13, 14, 14-1. A Roseboro notice was issued
August 8, 2019, however, Petitioner has not filed a response
thereto. ECF No. 15.
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
Prison Disciplinary Proceedings
Federal Bureau of Prisons inmate number 24388-016, is
currently incarcerated at Hazelton FCI serving a life
sentence following his conviction for first degree murder in
the District of Columbia Superior Court case number 2001 FEL
22, 2018, while Petitioner was incarcerated at Hazelton FCI,
he was charged in incident report number 3137834, with
“possession of drugs”, in violation of Code 113.
ECF No. 14-1 at 2. The Discipline Hearing Officer who
conducted the hearings filed a declaration as part of
Respondent's motion. ECF No. 14-1. Petitioner was found
guilty of the violation at a hearing conducted on July 26,
2018. Id. at 2. As a result of his conviction,
Petitioner was sanctioned to one day of disciplinary
segregation, 15 days of disciplinary segregated suspended
pending 180 days of clear conduct, 180 days loss of
commissary, 180 days loss of email and 180 days loss of
phone. Id. Upon administrative review, incident
report number 3137834 was remanded to the institution for
rehearing, which was conducted on July 2, 2019. At that
rehearing, it was determined that there was insufficient
evidence to support a finding, and the incident report was
expunged. Id. The DHO declared that he
“reviewed Petitioner's custody classification after
the expungement. . . and found the expungement did not change
his custody classification.” Id.
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. In
his petition, Petitioner did not indicate whether he had
presented or exhausted his claims through the prison's
internal grievance procedure, although he later stated that
staff actions prevented him from pursuing any administrative
remedies. ECF No. 1 at 7 - 8. Petitioner requests his
conviction for violation of Code 113 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 August 7, 2019, which asserted
that Petitioner had received the relief requested in his
petition, and that accordingly, the matter was moot. ECF No.
13. Although Petitioner was advised of his right to file a
response via the Roseboro notice filed August 8,
2019, for which service was accepted on August 12, 2019,
Petitioner has not filed any further pleadings. ECF No. 15.
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
party is not entitled to relief.” Rule 4(b), Rules
Governing Section 2255 Cases in the U.S. District Courts.