Opinion
C. A. 5:23-330-DCC-KDW
07-27-2023
Ramone Wright, Petitioner, v. Warden FCI Bennettsville, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Ramone Wright (“Petitioner”) is a federal inmate housed at FCI Bennettsville, a facility of the Federal Bureau of Prisons (“BOP”). He filed this pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the Petition in this case without prejudice.
I. Factual and Procedural Background
Petitioner entered a guilty plea to two counts of Violation of the Hobbs Act and two counts of Brandishing a Firearm During the Commission of a Crime of Violence. United States v. Wright, C/A No.: 2:16-cr-00059-MHW (S.D. Ohio Feb. 13, 2017), ECF No. 49. On February 9, 2017, the district court sentenced Petitioner to 180-months' imprisonment. Id., ECF Nos. 46, 47. Petitioner filed a Notice of Appeal on June 14, 2017, and the Sixth Circuit Court of Appeals dismissed his appeal on September 1, 2017. Id., ECF Nos. 53, 56. On February 14, 2018, Petitioner filed a motion to vacate judgment under 28 U.S.C. § 2255. Id., ECF No. 60. The government moved to dismiss the § 2255 Motion on June 13, 2018, and the court dismissed Petitioner's § 2255 Motion on December 6, 2019. Id., ECF Nos. 77, 88. Petitioner appealed the denial of his § 2255 motion, which the Sixth Circuit construed as a request for a certificate of appealability. Id., ECF No. 92. On May 18, 2020, the Sixth Circuit issued an order denying the application for certificate of appealability. Id., ECF No. 96. Petitioner filed a Petition for writ of certiorari with the United States Supreme Court, which was denied on August 17, 2020. Id., ECF No. 99. Petitioner filed the instant Petition on September 6, 2022. ECF No. 1.
II. Federal Habeas Issues
Petitioner claims his criminal history score, documented in his male custody classification, is incorrect. ECF No. 1-1 at 14. Petitioner appears to argue that the criminal history points listed in his presentence report are less than the points attributed to him in his male custody classification. Id. at 14-15. Petitioner seeks removal from the central inmate monitoring program, and a recalculation of his criminal history points on the male custody classification. ECF No. 1 at 9. Petitioner also claims he is being illegally confined in violation of Federal Revised Code Rule 32. ECF No. 1-3 at 1. Petitioner claims his sentence is erroneous due to a presentence report which mistakenly counted his state felony, which resulted in a sentencing range of 37 to 46 months, when the correct range was 33 to 41 months. Id. at 1-2.
III. Discussion
a. Failure to Exhaust
Petitioner is required to exhaust his administrative remedies within the BOP before submitting a § 2241 Petition challenging his male custody classification. Although § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in 28 U.S.C. § 2241 matter); McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”). This requirement of exhaustion allows prison officials to develop a factual record and “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). Exhaustion of administrative remedies may be excused under certain circumstances, such as by showing futility. United States v. Strickland, No. 7:98-CR-82-5-F(1), 2004 WL 3414644, at *1 (E.D. N.C. Aug. 9, 2004), aff'd, 126 Fed.Appx. 116, 117 (4th Cir. 2005).
Petitioner indicates he began the process to exhaust his administrative remedies, however it does not appear Petitioner completed the administrative remedy process. See ECF No. 1-1 at 1-4, 6-10. Although Petitioner claims the warden's failure to respond to his initial grievance excuses his failure to complete the administrative remedy process, see ECF No. 1-1 at 12, Petitioner is incorrect. The BOP administrative remedy program provides that “[i]f the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.” 28 C.F.R. § 542.18. If Petitioner did not receive a response to his initial grievance, he was entitled to consider it denied and continue to the next step in the administrative remedy process. However, Petitioner does not allege any facts to show that he continued with the administrative remedy process after his initial filing. The undersigned recommends this claim be summarily dismissed.
b. Illegal Sentence
Petitioner claims his sentence is erroneous due to a presentence report which mistakenly counted a state court felony when calculating his sentencing range. ECF No. 1-3.
“[I]t is well established that defendants convicted in federal court are obliged to seek habeas relief from their convictions and sentences through § 2255.” Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010) (citing In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997)). A petitioner cannot challenge his federal conviction and sentence under § 2241 unless he can satisfy the § 2255 savings clause as follows:
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.28 U.S.C. § 2255(e); see also Rice, 617 F.3d at 807 (finding court lacked jurisdiction over § 2241 petition outside savings clause).
Here, Petitioner fails to offer any argument or cite to any caselaw to establish that a § 2255 motion is inadequate or ineffective to test the legality of his detention. Accordingly, Petitioner is required to challenge his sentence through a § 2255 motion by petitioning the Sixth Circuit to file a second or successive § 2255 motion. See 28 U.S.C. 2255(h). The undersigned recommends this claim be summarily dismissed.
II. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge dismiss the petition in the above-captioned matter without prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).