Lobaina v. Shults

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 15 Report and Recommendations Signed by District Judge William H. Barbour, Jr on 10/16/18 (Copy mailed to Plaintiff)(MGB)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DARIEN RODRIGUEZ LOBAINA

PETITIONER

VS.

CIVIL ACTION NO. 3:17-cv-325-WHB-JCG

WARDEN LARRY SHULTS

RESPONDENT

OPINION AND ORDER
This

cause

is

before

the

Court

on

the

Report

and

Recommendation (“R and R”) of United States Magistrate Judge John
C. Gargiulo.

After considering the R and R1, the other pleadings

in this case, as well as relevant authorities, the Court finds the
R and R should be adopted in its entirety.

I.

Discussion

On May 3, 2017, Darien Rodriguez Lobaina (“Lobaina”), who was
then serving a federal sentence at the Federal Correctional Complex
in Yazoo City, Mississippi (“FCC-Yazoo”), filed a Petition for a
Writ of Habeas Corpus Under 28 U.S.C. § 2241 (“2241 Petition”) in
this Court2 seeking immediate release from custody on a claim that
his sentence had been miscalculated.

While the 2241 Petition was

1

The parties were required to file objections to the R and
R on or before October 11, 2018. No objections were filed.
2

As Lobaina is proceeding pro se, the allegations in his
pleadings have been liberally construed. See United States v.
Wilkes, 20 F.3d 651, 653 (5th Cir. 1994).

pending, Lobaina was released from federal custody, but did not
notify the Court of his change of address.
On May 25, 2018, United States Magistrate Judge John C.
Gargiulo entered an Order requiring Lobaina to show cause as to the
reason(s) his 2241 Petition should not be dismissed based on (1)
his failing to comply with the Orders of the Court by which he was
required to provide notice of changes in his address, and/or (2)
his being released from federal custody.
[Docket No. 13], 2.

See Show Cause Order

Lobaina did not respond to the Show Cause

Order.
On September 24, 2018, Judge Gargiulo entered a Report and
Recommendation

(“R

Petition be denied.

and

R”)

recommending

that

See R and R [Docket No. 15].

Lobaina’s

2241

Judge Gargiulo’s

recommendation was based on a finding that the Court could not
grant Lobaina the relief requested in his Petition because he had
already been released from federal custody.

See id. at 3.

Judge

Gargiulo also found that the 2241 Petition should be dismissed for
failure to prosecute as evidenced by Lobaina’s failure to notify
the Court of changes in his address, and to respond to the Show
Cause Order.

Id. at 3-4.

The Court has reviewed the R and R, to which no objections
were filed, as well as the Docket and other pleadings in this case.
After review, the Court agrees that Lobaina’s 2241 Petition should
be denied for the reasons stated by Judge Gargiulo.

2

Accordingly,

the Court will adopt Judge Gargiulo’s R and R recommending the
dismissal of this case.
For the foregoing reasons:
IT IS THEREFORE ORDERED that the September 24, 2018, Report
and Recommendation of United States Magistrate Judge John C.
Gargiulo

[Docket No. 15], is hereby adopted as the ruling of this

Court.
A Final Judgment dismissing this case shall be entered this
day.
SO ORDERED this the 16th day of October, 2018.

s/ William H. Barbour, Jr.
UNITED STATES DISTRICT JUDGE

3