Sowell v. Saad
Filing
26
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (DKT. NO. 23 ), GRANTING DEFENDANT'S MOTION TO DISMISS (DKT. NO. 16 ), AND DENYING PETITION FOR HABEAS CORPUS PURSUANT TO 28 USC 2241 (DKT. NO. 1 ). The Court adopts the Magist rate Judge's 23 Report and Recommendation, denies the Petitioner's 1 2241 Petition, grants the Respondent's 16 Motion to Dismiss and dismisses this civil action, without prejudice. The Clerk is directed to enter a separate judg ment order in this matter. Signed by District Judge Irene M. Keeley on 12/23/16. (To PS Petitioner via cert. mail)(mh) Modified on 12/23/2016 to correct docket text. NEF regen (mh). (Additional attachment(s) added on 12/23/2016: # 1 Certified Mail Return Receipt) (mh).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
NAVARRE SOWELL,
Petitioner,
v.
CIVIL ACTION NO. 1:16CV153
(Judge Keeley)
DAVID WILSON, Warden,
Respondent.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 16], AND DENYING PETITION
FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
Pending before the Court is the Petition for Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (“Petition”) filed by the petitioner,
Navarre Sowell (“Sowell”), on July 11, 2016 (Dkt. No. 1). In it, he
alleges
that
the
Federal
Bureau
of
Prisons
(“BOP”)
has
miscalculated his sentence by failing to give him credit for
certain time served prior to his sentencing. Id. at 5. Pursuant to
the local rules, the Petition was referred to the Honorable James
E. Seibert, United States Magistrate Judge, for initial review. On
August 29, 2016, Magistrate Judge Seibert directed the respondent
to show cause why the writ should not be granted (Dkt. No. 6).
After receiving two extensions of time, the respondent filed a
motion to dismiss or, alternatively, for summary judgment on
October 27, 2016 (Dkt. No. 16). In support of his motion, the
respondent argues that Sowell has failed to properly exhaust his
administrative remedies (Dkt. No. 17 at 5-6).
SOWELL V. WILSON
1:16CV153
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 16], AND DENYING PETITION
FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
On
October
31,
2016,
Magistrate
Judge
Seibert
issued
a
Roseboro notice advising Sowell of his right to file a response in
opposition within 21 days (Dkt. No. 19). Thereafter, on November
18, 2016, Sowell moved the Court to stay or continue his case,
acknowledging that he had not properly exhausted his administrative
remedies (Dkt. No. 21). Magistrate Judge Seibert denied that motion
as moot because 1) Sowell must exhaust his administrative remedies
prior to filing a § 2241 petition and 2) § 2241 does not contain a
statute of limitations barring a future filing (Dkt. No. 22 at 12).
In a Report and Recommendation (“R&R”) dated November 23,
2016, Magistrate Judge Seibert recommended that Sowell’s Petition
be denied and dismissed without prejudice (Dkt. No. 23 at 8). The
R&R concluded that Sowell had failed to properly exhaust his
administrative remedies with the BOP prior to filing the Petition.
Id. at 7. The R&R also informed Sowell of his right to file any
objections
to
the
recommendations
within
fourteen
(14)
days
following his receipt of the R&R. Id. at 8; see also 28 U.S.C. §
636(b)(1)(C). Although he received the R&R on November 28, 2016
(Dkt. No. 25), Sowell has not filed any objections.
2
SOWELL V. WILSON
1:16CV153
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 16], AND DENYING PETITION
FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
This Court is required to review de novo only those portions
of the magistrate judge’s findings to which specific objection is
made. Dellarcirprete v. Gutierrez, 479 F. Supp. 2d 600, 603-04
(N.D.W. Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th
Cir. 1983)). “[T]he Court may adopt, without explanation, any of
the magistrate judge’s recommendations to which the prisoner does
not object.” Id. at 604 (citing Camby, 718 F.2d at 199). Because
Sowell has not filed any objections, and has expressed agreement
with
the
conclusion
that
he
did
not
properly
exhaust
his
administrative remedies with the BOP, the Court’s review of the R&R
is for clear error.
Upon review of the R&R and the record, the Court adopts the
opinion of the Magistrate Judge for the reasons discussed in the
R&R (Dkt. No. 23). Therefore, the Court:
1.
ADOPTS the R&R (Dkt. No. 23);
2.
GRANTS Respondent’s Motion to Dismiss (Dkt. No. 16); and
3.
DENIES the Petition (Dkt. No. 1) and DISMISSES this civil
action without prejudice and ORDERS that it be STRICKEN
from the active docket of this Court.
It is so ORDERED.
3
SOWELL V. WILSON
1:16CV153
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION [DKT. NO. 23], GRANTING RESPONDENT’S
MOTION TO DISMISS [DKT. NO. 16], AND DENYING PETITION
FOR HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 [DKT. NO. 1]
The Court DIRECTS the Clerk to enter a separate judgment order
and to transmit copies of both orders to counsel of record and to
the pro se plaintiff by certified mail, return receipt requested.
DATED: December 23, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
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