Opinion
Civil Action No. 4:03-CV-097-Y
March 18, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
A. NATURE OF THE CASE
Don Benny Anderson, Federal Register No. 06260-026 has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241.
B. PARTIES
Petitioner Don Benny Anderson is currently confined at FMC-Fort Worth, in Fort Worth, Texas. Anderson named L.E. Fleming, the warden at FMC-Fort Worth as the respondent in this case. No process has been issued to Respondent in this case.
C. CLAIM
Don Benny Anderson, in this petition labeled as seeking relief under 28 U.S.C. § 2241, challenges the decision of federal parole officials to deny him release on parole based upon a prior conviction in state court. (Pet. at § XIV, page 11-12.)
D. LEGAL ANALYSIS
A petitioner seeking habeas relief pursuant to 28 U.S.C. § 2241 must first have exhausted his administrative remedies through the Bureau of Prisons. See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (challenges to an adverse decision of the United States Parole Commission); United States v. Gabor, 905 F.2d 76, 78 n. 2 (5th Cir. 1990); Cohee v. FCI-Seagoville, No. 3-02-CV-2293-P, 2003 WL 203100 at *1 (N.D.Tex. Jan. 28, 2003); Cofer v. Fleming, No. 4:01-CV-0054-G, 2001 WL 1297687, at *5 n. 8 (setting out the administrative procedure). Petitioner Anderson has not alleged or shown through exhibits that he presented his claims for administrative review. Thus, he has not exhausted the steps in the administrative review process, and he is not entitled to seek relief under § 2241 from the district court until he does exhaust administrative remedies.
RECOMMENDATION
It is therefore recommended that Petitioner's February 10, 2003 Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 be DISMISSED WITHOUT PREJUDICE.
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation within ten (10) after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until April 8, 2003. The United States District Judge need only make a de nova determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific written objection is timely made. See 28 U.S.C. § 636 (b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding and legal conclusion if it has been accepted by the United States District Judge. See Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990)
ORDER
Under 28 U.S.C. § 636, it is ORDERED that Petitioner is granted until April 8, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. It is further ORDERED that the above-styled and-numbered action, previously referred to the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby is returned to the docket of the United States District Judge.