Jerez v. Divris

Filing 18

District Judge Margaret R. Guzman: ORDER entered: ORDER adopting 13 Report and Recommendations. No objections having been filed, the Court adopts the Report and Recommendations that the action be dismissed without prejudice and that the motions for counsel be terminated as moot. (Frisch, Suzanne)

Case 4:24-cv-40101-MRG Document 13 Filed 10/10/24 Page 1 of 3

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BIENVENIDO JEREZ,
Petitioner,
v.
MATTHEW J. DIVRIS,
Superintendent of NCCI Gardner.

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CIVIL ACTION NO.
24-40101-DHH

ORDER FOR REASSIGNMENT TO A DISTRICT JUDGE
AND REPORT AND RECOMMENDATION OF DISMISSAL
October 10, 2024
Hennessy, M.J.
Pro se petitioner Bienvenido Jerez, who is confined at NCCI Gardner, has filed a petition
for habeas relief in which he challenges a sentence of imprisonment imposed in 2023 in Essex
Superior Court. (Dkt. No. 1). Jerez has also filed two motions for appointment of counsel.
(Dkt. Nos. 2, 8). The petition has not been served pending an initial review of the pleading.1 For
the reasons set forth below, the Court ORDERS that this action be reassigned to a District Judge
and RECOMMENDS to the District Judge that this action be dismissed without prejudice and
that the motions for counsel be terminated as moot.
I.

Order for Reassignment to a District Judge
Pursuant to General Orders (10-1) and (09-3), a case may be randomly assigned, at the

time of filing, to a Magistrate Judge. However, absent the parties’ consent to the final

1

See Rules Governing Section 2254 Cases, R. 4 (providing for the initial review of a petition under 28 U.S.C.
§ 2254 prior to service).

Case 4:24-cv-40101-MRG Document 13 Filed 10/10/24 Page 2 of 3

assignment of this case to a Magistrate Judge, a Magistrate Judge is without jurisdiction to
involuntarily dismiss an action. See 28 U.S.C. § 636(b)(1)(A).
This action was drawn to the undersigned Magistrate Judge under the above-described
protocol. As set forth below, the Court concludes that this action is subject to dismissal without
prejudice. Because the parties have not consented to the final assignment of this case to a
Magistrate Judge, the Court orders that this action be reassigned to a District Judge.
II.

Review of the Petition
In his petition, Jerez challenges a sentence imposed in 2023 for violating probation

imposed following a 2013 conviction. Jerez characterizes his pleading as a petition for a writ of
habeas corpus under the general habeas statute, 28 U.S.C. § 2241, stating that it “is the proper
vehicle for challenging pretrial detention, or attacking the execution of a sentence.” (Dkt. No. 1
at 4). Jerez has also filed two motions for appointment of counsel. (Dkt. Nos. 2, 8).
On August 22, 2024, the Court issued an order stating that, because Jerez sought to
challenge the judgment of a state court, he was required to seek relief under 28 U.S.C. § 2254
and to do so using the form titled “Petition for Relief from a Conviction or Sentence By a Person
in State Custody.” (Dkt. No. 12). This form elicits certain information that Jerez did not include
in his petition—notably, whether he had exhausted state remedies prior to seeking habeas relief
in this Court. The Court ordered Jerez to complete and submit the form within thirty-five days
and warned him that failure to do so could result in dismissal of the action by a District Judge.
Jerez has not responded to the order and the time for doing so has lapsed. In some
circumstances, dismissal on this basis alone might be disfavored. However, according to the
publicly available docket of the underlying criminal action, on July 28, 2023, Jerez filed a notice
of appeal from the challenged sentence and said appeal is pending. See Commonwealth v. Jerez,

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Case 4:24-cv-40101-MRG Document 13 Filed 10/10/24 Page 3 of 3

No. 1377CR01068 (Essex Sup. Ct. Mass.).2 As Jerez cannot obtain habeas relief in this Court
without having first exhausted available state remedies, see 28 U.S.C. § 2254(b)(1)(A), dismissal
is appropriate.
III.

Conclusion
In accordance with the foregoing:
1.

The Clerk shall reassign this case to a District Judge.

2.

The Court RECOMMENDS to the District Judge that this action be dismissed

without prejudice and that the motions for appointment of counsel be terminated as moot.3

So Ordered.
/s/ David H. Hennessy
David H. Hennessy
United States Magistrate Judge

2

The Court takes judicial notice of the state court docket, see Wiener v. MIB Group, Inc., 86 F.4th 76, 81 n.3 (1st
Cir. 2023), which is available through www.masscourts.org (last visited Oct. 4, 2024).

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The parties are hereby advised that pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2), they are entitled
to object to the Court’s Report and Recommendation by filing a specific written objection with the Clerk of this
Court within fourteen (14) days of service of this Report and Recommendation. Such written objections must
specifically identify the portion of the Report and Recommendation to which objection is made and the basis for
those objections. The parties are further advised that the First Circuit has repeatedly indicated that failure to comply
with Fed. R. Civ. P. 72(b) shall preclude further appellate review. See, e.g., M. v. Falmouth Sch. Dep’t, 847 F.3d 19,
26 (1st Cir. 2017); Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir. 1988).

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