Heatley v. Driver et al, No. 5:2008cv00125 - Document 22 (N.D.W. Va. 2009)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE: This Court hereby AFFIRMS and ADOPTS in its entirety the 17 Report and Recommendation of the magistrate judge. Accordingly, the petitioner's [1 5] Motion for Summary Judgment is DENIED, the respondent's 11 Motion to for Summary Judgment is GRANTED, and the petitioner's 1 Petition for Writ of Habeas Corpus (2241) is DENIED and DISMISSED WITH PREJUDICE as to the claims regarding the BOP's decision to deny parole, and DISMISSED WITHOUT PREJUDICE as to the claims concerning the calculation of his sentence and the award of good time credits. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active do cket of this Court. The Clerk is DIRECTED to enter judgment in this matter pursuant to FRCP 58. Signed by Senior Judge Frederick P Stamp, Jr on 7/31/2009. (Copy to pro se petitioner (via certified mail/rrr), counsel) (kac) (Additional attachment(s) added on 7/31/2009: # 1 Certified Mail Receipt) (kac).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA ANDRE L. HEATLEY, Petitioner, v. Civil Action No. 5:08CV125 (STAMP) WARDEN JOE DRIVER, Respondent. MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE I. Procedural History The pro se1 petitioner, Andre L. Heatley, filed a petition pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and Local Rule of Prisoner Litigation Procedure 83.09, et seq., this case was referred to United States Magistrate Judge James E. Seibert for an initial review and for a report and recommendation on disposition of this matter. dated September 18, 2008, the magistrate judge By order directed the respondent to show cause why the petition should not be granted. The respondent filed a combined response and motion to dismiss, or in the alternative, motion for summary judgment. In response to a Roseboro notice, the petitioner filed a motion for summary judgment. 1 No other pleadings were filed by either party. Pro se describes a person who represents himself in a court proceeding without the assistance of a lawyer. Black s Law Dictionary 1237 (7th ed. 1999). Magistrate Judge Seibert entered a report recommending that the respondent s motion to dismiss be granted, and that the petitioner s motion for summary judgment be denied. The magistrate judge also recommended that the petitioner s § 2241 be denied and dismissed with prejudice in part and denied and dismissed without prejudice in part. In his report and recommendation, the magistrate judge advised the parties that, pursuant to 28 U.S.C. § 636(b)(1)(C), any party may file written objections to his proposed findings and recommendations within ten days after being served with a copy of the magistrate judge s recommendation. No objections were filed. For the reasons articulated below, this Court finds that the magistrate judge s report and recommendation should be affirmed and adopted in its entirety. II. Facts This Court believes that a full recitation of the facts in this case is unnecessary here. the detailed Magistrate recitation Judge of Seibert s Accordingly, this Court relies on facts report provided and in section I recommendation. of An abbreviated review of the relevant facts follows below. The petitioner is currently serving a sentence in federal custody for 15 years to life on a conviction of murder while armed, in violation of District of Columbia Code § 22-2204, and a concurrent sentence of 5 to 15 years for possession of a firearm 2 during a crime of violence or dangerous offense, in violation of District of Columbia Code § 22-3204(b). In his petition, the petitioner alleges that the respondent has incorrectly calculated his eligibility for parole under the parole guidelines and have wrongfully denied him parole by failing to apply educational and industrial good time credit. The petitioner also asserts that the Commission s application of the federal parole guidelines instead of the District of Columbia Guidelines violates the Ex Post Facto Clause of the United States Constitution. III. Standard of Review Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de novo review of any portion of the magistrate judge s recommendation to which objection is timely made. However, failure to file objections to the magistrate judge s proposed findings and recommendation permits the district court to review the recommendation under the standards that the district court believes are appropriate and, under these circumstances, the parties right to de novo review is waived. 825 (E.D. Cal. 1979). See Webb v. Califano, 468 F. Supp. Because the petitioner filed no objections, this Court reviews the report and recommendation of the magistrate judge for clear error. IV. Discussion Because neither party has filed objections, this Court relies upon the facts and standard of review as stated by the magistrate 3 judge in his report and recommendation. This Court has thoroughly reviewed the record and finds no clear error in the magistrate judge s findings and recommendations. This Court agrees that the petitioner s § 2241 claims regarding the denial of parole should be denied and dismissed with prejudice because the BOP has the exclusive authority to determine parole eligibility and because the application of the federal parole guidelines does not violate the Ex Post Facto Clause. judge s This Court also agrees with the magistrate recommendation regarding the that calculation the of his petitioner s sentence § and 2241 the claims award of industrial and educational good time credits be denied without prejudice because the petitioner has failed to exhaust his the report and administrative remedies. V. This Court finds Conclusion no clear error in recommendation of the magistrate judge and hereby AFFIRMS and ADOPTS it in its entirety. Accordingly, the petitioner s motion for summary is DENIED, the respondent s motion for summary is GRANTED, and the petitioner s application for habeas corpus under 28 U.S.C. § 2241 is DENIED and DISMISSED WITH PREJUDICE in part and DENIED and DISMISSED WITHOUT PREJUDICE in part. Specifically, the claims regarding the BOP s decision to deny the petitioner parole are DENIED and DISMISSED WITH PREJUDICE, and the claims concerning the calculation of his sentence and the award of industrial and 4 educational good time credits are DENIED and DISMISSED WITHOUT PREJUDICE for failure to exhaust administrative remedies. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Moreover, this Court finds that the petitioner was properly advised by the magistrate judge that failure to timely object to the report and recommendation in this action will result in a waiver of appellate rights. object to the magistrate Thus, the petitioner s failure to judge s proposed findings and recommendation bars the petitioner from appealing the judgment of this Court. See 18 U.S.C. § 636(b)(1); Wright v. Collins, 766 F.2d 841, 845 (4th Cir. 1985); Thomas v. Arn, 474 U.S. 140 (1985). IT IS SO ORDERED. The Clerk is DIRECTED to transmit a copy of this memorandum opinion and order to the pro se petitioner by certified mail and to counsel of record herein. Pursuant to Federal Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment on this matter. DATED: July 31, 2009 /s/ Frederick P. Stamp, Jr. FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE 5

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