Whipple v. Heckard, No. 5:2023cv00416 - Document 39 (S.D.W. Va. 2023)

Court Description: MEMORANDUM OPINION AND ORDER denying as moot Petitioner's 25 and 31 Objections; denying as moot Petitioner's 26 , 27 and 30 Motions to extend the time to file objections; adopting the 12 Proposed Findings and Recommendations; d enying as moot Petitioner's 38 Motion for Voluntary Dismissal; denying Petitioner's 1 Petition for Writ of Habeas Corpus (2241) and 8 Amended Petition for Writ of Habeas Corpus (2241); and dismissing the matter. Signed by Judge Frank W. Volk on 11/2/2023. (cc: counsel of record; any unrepresented party) (btm)

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Dockets.Justia.com ROBERT Z. WHIPPLE, III, Petitioner, v. CIVIL ACTION NO. 5:23-cv-00416 WARDEN KATRINA HECKARD, et al., Respondents. Pending is Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [ ], filed May 30, 2023, Amended Petition for Writ of Habeas Corpus pursuant to § 2241 [ ], filed June 13, 2023, and Motion for Voluntary Dismissal [ ], file October 30, 2023. This action was previously referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission of proposed findings and a is PF&R on June 15, 2023. Magistrate Judge Tinsley recommended that the Court Dismiss deny Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [ Habeas Corpus [ ] and dismiss this action. Mr. Whipple timely objected. [Doc. 28].1 Whipple v. Heckard 1 ] and Amended Petition for Writ of Doc. 39 The Court has received several copies of objections sent July 6, 2023, as timely [ ]. Accordingly, the Court those objections filed August 14, 2023 [ ] and August 18, 2023 [ motions to extend the time to file objections [ ] are also . § 636(b)(1). The Court need not 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 (1985); see also 28 U.S.C. § portions of the report or specified proposed findings or recommendations to which objection is made Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Mr. Whipple hallenge the conditions of his confinement as opposed to the fact or duration of his imprisonment and thus, are not cognizable pursuant to § 2241 [ ]. The Supreme Court of the United States has not yet determined the scope or availability of a habeas remedy in conditions of confinement challenges. See Ziglar v. Abassi, 582 U.S. 120, 145 (2017). There is a circuit split on whether habeas claims can raise challenges to conditions of confinement, with most circuits concluding that they cannot. See Wilborn v. Mansukhani cases). The United States Court of Appeals for the Fourth Circuit has yet to address this question in a published opinion but has held that conditions of confinement claims are not cognizable in habeas proceedings in several unpublished decisions. See, e.g., Wilborn, 795 F. App x. at 164 2 Rodriguez v. Ratledge, 715 F. App x. 261, 266 (4th Cir. 2017) (explaining petitioner claim is cognizable under § 2241, but his challenge to the conditions of his confinement is not). Accordingly, the Court finds that a § 2241 petition may be properly used to attack the allegedly unlawful computation and but not the conditi Therefore, the Court the PF&R [ ], ], of Habeas Corpus pursuant to 28 U.S.C. § 2241 [ Corpus pursuant to 28 U.S.C. § 2241 [ Petition for Writ ] and Amended Petition for Writ of Habeas ], and the matter. The Court directs the Clerk to transmit a copy of this Order to any counsel of record and any unrepresented party. ENTER: 3 November 2, 2023

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