Opinion
ACTION NO. 2:18cv690
12-06-2019
WILFRED BLAIR, #37549-083, Petitioner, v. MARK BOLSTER, Acting Warden, Respondent.
FINAL ORDER
This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2241 submitted by pro se Petitioner Wilfred Blair ("Blair" or "Petitioner"), along with the required $5.00 filing fee. Blair's petition seeks restoration of 27 days of good conduct time as a result of claimed violations of his due process rights during prison disciplinary proceedings.
The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. Report of the Magistrate Judge was filed on November 7, 2019, recommending dismissal of the petition without prejudice as Blair has neither exhausted his administrative remedies nor plausibly alleged any violation of his right to due process. (ECF No. 19). By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the Magistrate Judge. On November 27, 2019, the court received petitioner's Objections to the Magistrate Judge's Report and Recommendation. (ECF No. 20). On December 3, 2019, the court received the Government's Response to Petitioner's Objections. (ECF No. 21).
The court, having reviewed the record, having examined the Petitioner's objections and Government's Response to Objections, and having made de novo findings with respect to the portions objected to, does hereby adopt and approve the findings and recommendations set forth in the Report of the United States Magistrate Judge filed November 7, 2019, and it is, therefore, ORDERED that Respondent's Motion to Dismiss (ECF No. 9) is GRANTED and Blair's petition is DENIED and DISMISSED without prejudice as a result of his failure to exhaust administrative remedies.
Finding that the basis for dismissal of Petitioner's § 2241 petition is not debatable, and alternatively finding that Petitioner has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability is DENIED. 28 U.S.C. § 2253(c); see Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a); Miller-El v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-85 (2000).
Petitioner is ADVISED that because a certificate of appealability is denied by this Court, he may seek a certificate from the United States Court of Appeals for the Fourth Circuit. Fed. Rule App. Proc. 22(b); Rules Gov. § 2254 Cases in U.S. Dist. Cts. 11(a). If Petitioner intends to seek a certificate of appealability from the Fourth Circuit, he must do so within sixty (60) days from the date of this Order. Petitioner may seek such a certificate by filing a written notice of appeal with the Clerk of the United States District Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510.
The Clerk shall mail a copy of this Final Order to Petitioner and provide an electronic copy of the Final Order to counsel of record for Respondent.
/s/_________
Robert G. Doumar
Senior United States District Judge Norfolk, Virginia
December 6, 2019