Hazel v. Cross

Filing 10

ORDER ADOPTING REPORT AND RECOMMENDATION as to 4 OPINION/Report and Recommendations. DISMISSES Hazels § 2241 petition WITH PREJUDICE and ORDERS the case stricken from the Courts docket. Signed by District Judge Irene M Keeley on 3/18/2009. (Copy counsel of Record and Pro Se Petitioner by certified mail) (jmm)

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA BOBBY E. HAZEL, Petitioner, v. Civil Action No. 1:09CV4 (Judge Keeley)

JAMES N. CROSS, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATIONS Pro se petitioner, Bobby E. Hazel ("Hazel"), initiated this 28 U.S.C. § 2241 habeas corpus petition on January 15, 2009. On

January 20, 2009, Magistrate Judge John S. Kaull conducted a preliminary review of Hazel's petition and issued a Report and Recommendation dismissed with ("R&R"), prejudice in as which he recommends filed. the case be

improperly

Specifically,

Magistrate Judge Kaull determined that Hazel's petition, filed under § 2241, raised issues that should have been raised in a petition under 28 U.S.C. § 2255. Because Hazel has already filed

a § 2255 petition, however, he is barred from filing a successive § 2255 petition. See 28 U.S.C. § 2255(h).

The R&R additionally informed the parties that any objections to the Magistrate Judge's recommendations must be submitted within ten days of receipt of the R&R. Hazel has not filed objections to

the R&R, but, on February 3, 2009, the Clerk of the Court received a letter from Hazel's sister, in which she forwarded the filing fee of $5.00 on behalf of her brother, because the institution where he is housed, USP-Hazelton, had been on "lock-down" (dkt. no. 7).

HAZEL V. CROSS ORDER ADOPTING REPORT AND RECOMMENDATION

1:09CV4

Then, on February 23, 2009, the Clerk of the Court received a letter written in pencil from Hazel, in which he indicates that the prison officials had refused to provide him with a pen to write "legal pleadings to the court," because he is in administrative segregation (dkt. no. 9). Hazel asked the Clerk of the Court to

provide him with "information on the appropriate steps to file my pleadings to the court." In light of this correspondence to the Court, which was received more than ten working days before this Order, it is clear that Hazel could have filed objections in the time that has passed since the R&R was issued, but has chosen not to.1 Accordingly,

because no objections have been filed, the Court ADOPTS the R&R in its entirety (dkt. no. 4), DISMISSES Hazel's § 2241 petition WITH PREJUDICE and ORDERS the case stricken from the Court's docket. The Court directs the Clerk to transmit a copy of this Order to any counsel of record, and all appropriate agencies, and to mail a copy of this order to the pro se petitioner by certified mail, return receipt requested. DATED: March 18, 2009 /s/ Irene M. Keeley IRENE M. KEELEY UNITED STATES DISTRICT JUDGE The failure to object to the R&R not only waives the appellate rights in this matter, but also relieves the Court of any obligation to conduct a de novo review of the issue presented. See Thomas v. Arn, 474 U.S. 140, 148-153 (1985); Wells v. Shriners Hosp., 109 F.3d 198, 199-200 (4th Cir. 1997). 2
1