Opinion
Civil Action 3:21-CV-137
03-21-2022
ANTHONY COLE, Petitioner, v. RICHARD HUDGINS, Warden, Respondent.
GROH
REPORT AND RECOMMENDATION
ROBERT W. TRUMBLE, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On August 23, 2021, Petitioner, an inmate at Hazelton FCI, acting pro se, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 (the “Petition”), challenging the calculation of his sentence. ECF No. 1. On that same date, Petitioner paid the filing fee. ECF No. 2.
ECF Numbers cited herein refer to case number 3:21-CV-137 unless otherwise noted.
The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR PL P 2. For the reasons set forth below, the undersigned recommends that the Petition be denied and dismissed with prejudice.
II. FACTUAL AND PROCEDURAL HISTORY
A. Conviction and Sentence in the Eastern District of Michigan
Throughout section II.A. all ECF numbers refer to entries in the docket of Criminal Action No. 2:18-CR-20237 in the Eastern District of Michigan. Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts “may properly take judicial notice of public record); Colonial Penn. Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the contents of court records.'”).
On April 10, 2018, an indictment was returned in case number 2:18-CR-20237 in the Eastern District of Michigan, which among other offenses charged Petitioner and several co-defendants with various fraud offenses, including: (1) in Count 1 with attempt and conspiracy to commit health care fraud and wire fraud, in violation of 18 U.S.C. § 1349; (2) in Counts 30 - 39 with health care fraud, in violation of 18 U.S.C. §§ 1347 and 2; and (3) in Counts 49 - 58, with health care fraud in violation of 18 U.S.C. §§ 1347 and 2. ECF No. 1. Pursuant to a written plea agreement filed on October 3, 2019, Petitioner entered a guilty plea to Count 1 of the indictment. ECF No. 78. On July 11, 2019, Petitioner was sentenced to 40 months of imprisonment. ECF No. 137.
Petitioner filed an appeal with the Sixth Circuit Court of Appeals on July 19, 2019, but the appeal was voluntarily dismissed on Petitioner's motion on August 1, 2019. ECF Nos. 138, 140.
B. Instant Petition for Habeas Corpus Under § 2241
On August 23, 2021, the Petitioner filed the Court-approved form for a petition for habeas corpus under 28 U.S.C. § 2241 in this Court. ECF No. 1. Petitioner claims that the Bureau of Prisons has: (1) unlawfully extended his sentence beyond the permissible term under the First Step Act; (2) failed to apply earned time credits available under the First Step Act; and (3) failed to give him earned time credit for successfully completing programming. ECF No. 1 at 5 - 6. Petitioner asks this Court to: (1) release him from incarceration to supervised release; (2) alternatively to issue a show cause order which directs Respondent to certify the “true cause” of Petitioner's detention; (3) alternatively, if Respondent fails or refuses to present the record certifying the true cause of Petitioner's detention, to immediately discharge Petitioner to supervised release. ECF Nos. 1 at 8, 1-1 at 1.
On September 22, 2021, Respondent filed a motion to dismiss, or in the alternative for summary judgment, along with a memorandum and exhibits. ECF Nos. 8, 8-1 through 8-3. Therein, Respondent argues that Petitioner has failed to exhaust his administrative remedies, and further, is not entitled to any further credit. ECF No. 8-1. Respondent argues that Petitioner filed three administrative remedies requesting that his earned First Step Act time credits be applied. Id. at 8. However, at the time Petitioner filed the instant action, none of the three administrative remedies were fully exhausted. Id. at 8 - 9.
Petitioner filed a total of ten administrative remedies, only three of which concerned the issues raised here.
Further, Respondent argues that if the Court were to consider Petitioner's claims on the merits, Petitioner is not entitled to credit because his claim is not ripe for review. Id. at 9. Respondent argues that based on the deadlines established in the First Step Act, the petition was filed before the Attorney General or the Bureau of Prisons was required to take any action pursuant to the First Step Act. Id. at 9 - 10. First, the Attorney General was to develop a risk and needs assessment within 210 days of the law's enactment, which was accomplished on July 19, 2019, when the BOP released the Prisoner Assessment Tool Targeting Estimated Risk and Needs (PATTERN). Id. at 10. Next the BOP was required to implement and complete an initial intake risk and needs assessment for each prisoner and begin to assign prisoners to appropriate evidence-based recidivism reduction programs based on that determination within 180 days of PATTERNS's release, or by January 15, 2020. Id. The statute then provided BOP with two years after it completes the risk and needs assessment for each prisoner to “phase in” the program, or by January 15, 2022. Id.
Petitioner filed a response on September 27, 2021, to Respondent's motion to dismiss. ECF No. 10. Therein, Petitioner contends that he did exhaust his administrative remedies. Id. at 2.
On October 25, 2021, Respondent filed a reply which addressed Petitioner's claim that he exhausted his administrative remedies. ECF No. 16.
Thereafter, Petitioner filed two requests for admission of supplemental information which were considered motions, filed on October 25, 2021, and December 9, 2021. ECF Nos. 17, 18.
III. LEGAL STANDARD
A. Review of Petitions for Relief
Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and the Court's Local Rules of Prisoner Litigation Procedure, this Court is authorized to review such petitions for relief and submit findings and recommendations to the District Court. This Court is charged with screening Petitioner's case to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the U.S. District Courts; see also Rule 1(b) Rules Governing Section 2254 Cases in the U.S. District Courts (a district court may apply these rules to a habeas corpus petition not filed pursuant to § 2254).
B. Pro Se Litigants.
Courts must read pro se allegations in a liberal fashion and hold those pro se pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Pursuant to 28 U.S.C. § 1915A(b), the Court is required to perform a judicial review of certain suits brought by prisoners and must dismiss a case at any time if the Court determines that the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. A complaint is frivolous if it is without arguable merit either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superseded by statute). The Supreme Court in Neitzke recognized that:
Section 1915(d) is designed largely to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate because of the costs of bringing suit and because of the threat of sanctions for bringing vexatious suits under Federal Rule of Civil Procedure 11. To this end, the statute accords judges not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.490 U.S. at 327.
The version of 28 U.S.C. § 1915(d) which was effective when Neitzke was decided provided, “The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” As of April 26, 1996, the statute was revised and 28 U.S.C. § 1915A(b) now provides, “On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint-(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."
C. Post-Conviction Remedies and Relief
Prisoners seeking to challenge the validity of their convictions or their sentences are required to proceed under § 2255 in the district court of conviction. By contrast, a petition for writ of habeas corpus, pursuant to § 2241, is intended to address the execution of a sentence, rather than its validity, and is to be filed in the district where the prisoner is incarcerated. “In a § 2241 petition a prisoner may seek relief from such things as the administration of his parole, computation of his sentence by parole officials, disciplinary actions taken against him, the type of detention, and prison conditions in the facility where he is incarcerated.” Adams v. United States, 372 F.3d 132, 135 (2d Cir. 2004).
D. Motions to Dismiss
Federal Rule of Civil Procedure 12(b)(6) permits dismissal of a case when a complaint fails to state a claim upon which relief can be granted. The Federal Rules of Civil Procedure require only, “‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Courts long have cited, “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley, 355 U.S. at 45-46.
Plaintiff is proceeding pro se and therefore the Court must liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 - 1 (1972) (per curiam); Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197 (2007). Although a complaint need not contain detailed factual allegations, a plaintiff's obligation in pleading, “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” to one that is “plausible on its face.” Id. at 555, 570. In Twombly, the Supreme Court found that, “because the plaintiffs [ ] have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” Id. at 570. Thus, to survive a motion to dismiss, a plaintiff must state a plausible claim in his complaint which is based on cognizable legal authority and includes more than conclusory or speculative factual allegations.
“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” because courts are not bound to accept as true a legal conclusion couched as a factual allegation. Id. at 678. “[Determining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, a well-pleaded complaint must offer more than, “a sheer possibility that a defendant has acted unlawfully, ” in order to meet the plausibility standard and survive dismissal for failure to state a claim. Id. at 678.
“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of North Carolina v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs, Inc. v. Matkari, 7 F.3d1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952.
E. Motion for Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a), the Court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In applying the standard for summary judgment, the Court must review all the evidence in the light most favorable to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In Celotex, the Supreme Court held that the moving party bears the initial burden of informing the Court of the basis for the motion to, “demonstrate the absence of a genuine issue of material fact.” 477 U.S. at 323. Once “the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“The movant has the burden of showing that there is no genuine issue of fact, but the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a verdict.” Anderson, supra, at 256. Thus, the nonmoving party must present specific facts showing the existence of a genuine issue for trial, meaning that “a party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials of [the] pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Id. The “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent the entry of summary judgment. Id. at 248.
To withstand such a motion, the nonmoving party must offer evidence from which a “fair-minded jury could return a verdict for the [party].” Id. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). Such evidence must consist of facts which are material, meaning that they create fair doubt rather than encourage mere speculation. Anderson, supra, at 248.
Summary judgment is proper only “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita, supra, at 587. “Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. citing First Ntl. Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 155, 1592 (1968). See Miller v. Fed. Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir. 1990). Although any permissible inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion, where, the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate. Matsushita, supra, at 587-88. Anderson, supra, at 248-49.
IV. ANALYSIS
Because the Petitioner is challenging the computation of his sentence, the consideration of his claims under § 2241 is appropriate. The Petitioner, federal inmate number 56536-039, filed a habeas corpus claim pursuant to 28 U.S.C. § 2241. However, pursuant to 28 U.S.C. § 2241(c)(1), “The writ of habeas corpus shall not extend to a prisoner unless-(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof.” According to the BOP Inmate Locator service, Petitioner was released from custody on January 20, 2022.
Federal Bureau of Prisons Inmate Locator, https://www.bop.gov/inmateloc/.
This Court lacks jurisdiction because Petitioner is no longer in custody of the United States. In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998), the Supreme Court wrote that “without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” See also Reinbold v. Evers, 187 F.3d 348, 359 n. 10 (4th Cir. 1999). Because this court lacks jurisdiction, this court cannot entertain the petition.
V. RECOMMENDATION
For the foregoing reasons, I RECOMMEND that the Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241 [ECF No. 1] be DENIED and that the § 2241 proceeding be DISMISSED WITH PREJUDICE because Petitioner was released from custody and this Court no longer has jurisdiction.
It is further RECOMMENDED that Respondent's motion to dismiss or for summary judgment [ECF No. 8] be GRANTED, and that Petitioner's motions to admission of supplemental information [ECF Nos. 17, 18] be TERMINATED as MOOT.
Within fourteen (14) days after being served with a copy of this Recommendation, any party may file with the Clerk of the Court, specific written objections, identifying the portions of the Report and Recommendation to which objection is made, and the basis of such objection. A copy of such objections should also be submitted to the Honorable Gina M. Groh, Chief United States District Judge. Objections shall not exceed ten (10) typewritten pages or twenty (20) handwritten pages, including exhibits, unless accompanied by a motion for leave to exceed the page limitation, consistent with LR PL P 12.
Failure to file written objections as set forth above shall constitute a waiver of de novo review by the District Court and a waiver of appellate review by the Circuit Court of Appeals. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989); 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).
This Report and Recommendation completes the referral from the district court. The Clerk is directed to terminate the Magistrate Judge's association with this case.
The Clerk is directed to provide a copy of this Report and Recommendation to the pro se Petitioner by certified mail, return receipt requested, to his last known address as reflected on the docket sheet, and to all counsel of record, as applicable, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia.