Green v. Jones

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION 12 of Magistrate Judge Suzanne Mitchell and grants respondent's motion to dismiss 11 and dismisses this action without prejudice...the court also denies a certificate of appealability as it finds petitioner has not made a substantial showing of the denieal of a constitutional right. Signed by Honorable Joe Heaton on 05/28/2014. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
BOBBY ALLAN GREEN,

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Petitioner,
vs.
JUSTIN JONES, DOC Director,
Respondent.

NO. CIV-13-814-HE

ORDER
Petitioner Bobby Allan Green, a state prisoner appearing pro se, filed this action
pursuant to 28 U.S.C. § 2241,1 challenging a prison disciplinary conviction. Consistent
with 28 U.S.C. §636(b)(1)(B), (C), the matter was referred to Magistrate Judge Suzanne
Mitchell, who recommends that a motion to dismiss filed by respondent be granted and.
the petition be dismissed without prejudice.
The respondent argued in his motion that petitioner had failed to show he had
exhausted his state administrative and judicial remedies. Although he acknowledged his
nonexhaustion in his petition, petitioner pleaded that he had no state remedy and that any
attempt to exhaust would have been futile and dangerous. Doc. #1, p.8. He did not,
though, respond to respondent’s motion. As a result, the magistrate judge determined
petitioner had failed to exhaust his state remedies had failed to explain adequately his
inability to do so.

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Although he filed his petition on the form used for § 2254 actions, the magistrate judge
treated it as if filed under § 2241, as petitioner is challenging the execution of his prison term rather
than the validity of his conviction or sentence.

Petitioner did not object to the Report and Recommendation and thereby waived
his right to appellate review of the factual and legal issues it addressed. United States v.
One Parcel of Real Property, 73 F.3d 1057, 1059-60 (10th Cir. 1996). See 28 U.S.C. §
636(b)(1)(C). Accordingly, the court adopts Magistrate Judge Mitchell’s Report and
Recommendation, GRANTS respondent’s motion to dismiss [Doc. #11] and
DISMISSES this action without prejudice. The court also DENIES a certificate of
appealability as it finds petitioner has not made "a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
Dated this 28th day of May, 2014.

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