Spears v. Carvajal

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 3 Report and Recommendations,. Signed by Judge Michael H. Schneider on 8/1/12. (mrm, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TEXARKANA DIVISION KEVIN SPEARS § VS. § MICHAEL D. CARVAJAL § CIVIL ACTION NO. 5:11cv151 MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Petitioner Kevin Spears, an inmate confined at the Federal Correctional Institution in Texarkana, Texas, proceeding pro se, brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Court referred this matter to the Honorable Caroline M. Craven, United States Magistrate Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court. The Magistrate Judge recommends the petition be dismissed. The Court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available evidence. Petitioner filed objections to the magistrate judge's Report and Recommendation. This requires a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the Court concludes petitioner's objections should be overruled. Petitioner had not exhausted available administrative remedies at the time he filed the petition. Generally, a federal prisoner must exhaust his administrative remedies before seeking habeas relief in federal court under 28 U.S.C. § 2241. Skinner v. Wiley, 355 F.3d 1293, 1295 (11th Cir.), cert. denied, 541 U.S. 1036 (2004); Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994); see also Rourke v. Thompson, 11 F.3d 47, 49 (5th Cir. 1993). While petitioner requested to be excused from the exhaustion requirement, he failed to show extraordinary circumstances warranting such excuse. As petitioner did not exhaust available administrative remedies prior to filing this petition, the petition should be dismissed. Further, a review of the inmate locator service reveals petitioner is no longer confined in the Bureau of Prisons; thus, his petition is moot. Therefore, this petition should be dismissed. ORDER . Accordingly, petitioner's objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's recommendations. It is SO ORDERED. SIGNED this 1st day of August, 2012. ____________________________________ MICHAEL H. SCHNEIDER UNITED STATES DISTRICT JUDGE 2

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