Goist v. Warden FCI Williamsburg

Filing 20

ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 12 Motion. Petitioners claim is dismissed.Signed by Honorable Richard M Gergel on 4/6/2018.(cwhi, )

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IN THE UNITED STATES DISTRICT corn'
DISTRICT OF SOUTH CAROLINA
DIVISION

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Paul B. Goist,
Petitioner,
V.

Bryan Antonelli, Warden, FCI
Williamsburg,
Respondent.

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Civil Actiqn,N~;tf;'t7~3289i~G .

ORDER AND OPINION

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This matter is before the Court on the Report and Recommendation of the Magistrate
Judge, recommending the petition for habeas relief under 28 U.S.C. § 2241 be dismissed. For the
reasons set forth below, the Court adopts the Report and Recommendation and dismisses the
petition.

I.

Background
Petitioner was sentenced to twenty years imprisonment for bank robbery on October 18,

200 l in the N orthem District of Ohio. With good conduct time credit, his projected release date
is August 4, 2018.

He is currently incarcerated in South Carolina.

Petitioner was initially

recommended for an eight-month Residential Re-enter Center ("RRC") placement in northeast
Ohio to begin December 26, 2017. That placement date was subsequently reduced to a two-month
placement to begin June 1, 2018 because of limited bed space in RRCs in northeast Ohio.
On December 4, 2017, Petitioner filed the present petition for habeas relief under § 2241,
arguing the reduction in his scheduled RRC placement violated 18 U.S.C. §§ 3621 and 3624.
Petitioner asks the Court to order that he be placed in an RRC. Respondent moves to dismiss or
alternately for summary judgment, arguing Petitioner has not exhausted administrative remedies
and that he is not entitled to an RRC placement of any particular length or even one at all. On
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March 14, 2018, the Magistrate Judge recommended the petition be dismissed. Petitioner has filed
no objections to the recommendation of the Magistrate Judge.

II.

Legal Standard
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de nova determination of those portions of the Report and Recommendation to which specific
objection is made. Additionally, the Court may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l). This Court
may also "receive further evidence or recommit the matter to the magistrate judge with
instructions." Id. Where the plaintiff fails to file any specific objections, "a district court need not
conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation," see Diamond v. Colonial Life & Accident

Ins. Co., 416 F .3d 310, 315 (4th Cir. 2005) (internal quotation omitted), and this Court is not
required to give any explanation for adopting the recommendation of the Magistrate Judge, Camby

v. Davis, 718 F.2d 198 (4th Cir. 1983).
III.

Discussion

A.

Exhaustion
The Bureau of Prisons ("BOP") has a three-tiered grievance process. A written complaint

is first filed with the warden. The prisoner may appeal the warden's decision to the regional
director, and he may appeal the regional director's decision to the general counsel. The general
counsel has forty days to respond to the appeal. A prisoner exhausts his administrative remedies
only when notified of the general counsel's response or when the forty-day period for a response
lapses. See 28 C.F.R. § 542.18.

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In this case, Petitioner filed his final administrative appeal with the general counsel on
December 4, 2017, and on the same day filed this habeas action. A prisoner "may not exhaust
administrative remedies during the pendency of the federal suit." Freeman v. Francis, l 96 F.3d
641, 645 (6th Cir. 1999). Petitioner indeed does not argue that he exhausted administrative
remedies. Instead, he appears to believe that he need not exhaust administrative remedies because
the final administrative appeal might not have been ruled upon before his originally scheduled
December 26, 2017 RRC placement.

Failure to exhaust is excused only in "extraordinary

circumstances." Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994). That the administrative appeal
could at most extend two weeks beyond December 26, 2017 is in no sense an extraordinary
circumstance. This is especially true given that Petitioner has no right to RRC placement on any
particular date (or at all). The Court therefore adopts the Magistrate Judge's recommendation that
the petition be dismissed for failure to exhaust administrative remedies.
B.

Merits

Even if he had exhausted administrative remedies, Petitioner's petition fails to state any
cognizable claim for habeas relief. Petitioner has no right to RRC placement. It is within the sole
discretion of the BOP whether to place a prisoner in an RRC, and if so, for how long. BOP must
consider five statutory factors when exercising that discretion, see XXX § 3621 (b ), but the record
shows BOP did in fact consider those factors and, regardless, there is no claim that BOP did not.
Moreover, the RRC placement decisions by the BOP made under § 362l(b) are not subject to
judicial review. See Palmer v. Batts, CIA No. 1:11-0566, 2014 WL 3045177 (S.D.W. Va. 2014);
Garrison v. Stansberry, CIA No. 2:08cv522, 2009 WL 1160115, *4 (E.D. Va. 2009); Fullenwiley
v. Wiley, No. 98-169, 1999 WL 33504428 (N.D.N.Y Oct. 5, 1999); see also Woodall v. Fed.
Bureau of Prisons, 432 F.3d 235, 251 (3d Cir. 2005) (stating "that the BOP may assign a prisoner

to a CCC does not mean that it must"). The Court therefore adopts the Magistrate Judge's
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recommendation that the petition be dismissed for failure to state a cognizable claim for habeas
relief.
IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the Report and Recommendation of the

Magistrate Judge (Dkt. No. 17) as the Order of the Court and DISMISSES the petition for habeas
relief.
AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
April __y_, 2018
Charleston, South Carolina

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