Kelly v. United States of America et al

Filing 21

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts the Report and Recommendation. Accordingly, Petitioner's § 2241 is DISMISSED without prejudice and without issuance and service of process. Petitioner's Motion for Summary Judgment 16 is moot. Signed by Honorable Timothy M Cain on 11/7/2011. (mcot, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION

John Thomas Kelly, Jr.,
Petitioner,
v.
United States of America;
and Mary Mitchell,
Respondents.

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C/A No.: 1:11-383-TMC

OPINION & ORDER

Petitioner John Thomas Kelly, Jr., (“Petitioner”) proceeding pro se, has filed this
habeas petition pursuant to 28 U.S.C. § 2241. This matter is before the court with the
Report and Recommendation of United States Magistrate Judge Shiva V. Hodges made
in accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 of the District of South
Carolina.1 In her Report, Magistrate Judge Hodges recommends the petition be dismissed
because Petitioner failed to exhaust his administrative remedies.
Petitioner is required to exhaust his administrative remedies before filing a § 2241
petition for writ of habeas corpus. See Timms v. Johns, 627 F.3d 525 (4th Cir.2010)
(holding exhaustion of remedies required prior to filing for habeas relief under § 2241).

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The recommendation has no presumptive weight, and the responsibility for
making a final determination remains with the United States District Court. See
Mathews v. Weber, 423 U.S. 261, 270 (1976). The court is charged with making a de
novo determination of those portions of the Report and Recommendation to which
specific objection is made. The court may accept, reject, or modify, in whole or in part,
the recommendation made by the magistrate judge or recommit the matter with
instructions. 28 U.S.C. § 636(b)(1).

While the exhaustion requirement is not mandated by statute, it “has developed through
decisional law in applying principles of comity and federalism[.]” Schandelmeier v.
Cunningham, 819 F.2d 52, 53 (3d Cir.1986) (citing Braden v. 30th Judicial Circuit Court,
410 U.S. 484, 490-91 (1973)); see also Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.1994).
Exceptions to the exhaustion requirement apply only in “extraordinary circumstances”, and
the petitioner must demonstrate the futility of administrative review. Fuller, 11 F.3d at 62.
Petitioner filed objections to the Report which he subsequently supplemented. In
his objections, Petitioner states he is actively pursuing his administrative remedies and that
the administrative remedies are futile. However, even if Petitioner is currently attempting
to exhaust his administrative remedies, it is apparent that he failed to exhaust his
administrative remedies before filing this action. Furthermore, Petitioner’s futility argument
is also without merit.
Exhaustion of administrative remedies may be excused when a petitioner
establishes that exhaustion would be futile. United States v. Strickland, No.
7:98–CR–82–5–F(l), 2004 WL 3414644, at *1 (E.D.N.C. Aug. 9, 2004), aff'd, 126 F. App'x
116, 117 (4th Cir.2005) (unpublished). Petitioner bears the burden of demonstrating futility.
See Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.1994) (per curiam). Exhaustion may be excused
under certain circumstances, such as by a showing of futility or irreparable injury. It is clear,
however, that “[e]xhaustion of administrative remedies is not rendered futile simply because
an inmate anticipates he will be unsuccessful in his administrative appeals before the
12–month pre-release mark.” Wright v. Warden, No. RDB–10–671, 2010 WL 1258181, *1
(D.Md. Mar. 24, 2010) (finding that “[e]xhaustion of administrative remedies is not rendered
futile simply because an inmate anticipates he will be unsuccessful in his administrative
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appeals before the 12–month pre-release mark.”)). See also Yannucci v. Stansberry, 2009
WL 2421546, *3 (E.D.Va. Jul. 28, 2009)(slip copy)(finding that inmate's claim that “he ran
out of time to complete the administrative exhaustion process prior to filing his petition is
not a sufficient excuse for failing to exhaust his [RRC] claims”); and Garrison v. Stansberry,
2009 WL 1160115, *3 (E.D.Va. Apr. 29, 2009)(slip copy)(explaining that granting review
of RRC placement claims because of “timesensitivity” would encourage the filing of similar
petitions before the administrative remedy process has run its course, which would “both
undermine the effectiveness of the administrative review process and burden the Court with
superfluous claims”).
Based on the foregoing, Petitioner has failed to meet his burden of establishing the
futility of administrative review. Nor has he demonstrated any other grounds to establish
cause or prejudice necessary to excuse his failure to exhaust his administrative remedies
prior to filing this action. After a thorough review of the Magistrate Judge's Report and the
record in this case, the court adopts the Report and Recommendation. Accordingly,
Petitioner's § 2241 petition is DISMISSED without prejudice and without issuance and
service of process. Petitioner’s Motion for Summary Judgment (Dkt. # 16) is moot.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge

November 7, 2011
Greenville, South Carolina

NOTICE OF RIGHT TO APPEAL
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The parties are hereby notified of the right to appeal this order pursuant to Rules
3 and 4 of the Federal Rules of Appellate Procedure.

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