Flythe v. Saad

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATION. Signed by Chief Judge Gina M. Groh on 10/31/2018. Copy mailed to pro se petitioner by CMRR. (cwm) (Additional attachment(s) added on 10/31/2018: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG

KEVIN FLYTHE,
Petitioner,
v.

CIVIL ACTION NO.: 3:18-CV-57
(GROH)

JENNIFER SAAD,
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
Pending before the Court is the Report and Recommendation (AR&R@) of United
States Magistrate Judge Robert W. Trumble. ECF No. 13. Pursuant to this Court’s
Local Rules, this action was referred to Magistrate Judge Trumble for submission of a
proposed R&R. Magistrate Judge Trumble issued his R&R on September 19, 2018. In
his R&R, Magistrate Judge Trumble recommends that the Petitioner=s § 2241 petition
[ECF No. 1] be denied and dismissed without prejudice.
I. Background
The Petitioner in this case was convicted by a jury in the District of Columbia
Superior Court of five felony charges, Counts 2-6. He was initially sentenced on or
about March 15, 1995. Following an appeal, he was resentenced on February 23, 1999
for Counts 2, 4 and 6. 1 A third resentencing hearing was held on March 21, 2003 where
petitioner was resentenced to not less than 10 years nor more than 30 years for Count
2, and to not less than 30 years to life for his conviction for Count 6, which included
1

As Magistrate Judge Trumble notes, it appears Counts 3 and 5 were disposed of on appeal.

mandatory minimum application. 2 In the instant petition, Petitioner requests the Court to
instruct Jennifer Saad, Warden, to calculate his good time credits consistent with the
District of Columbia’s Good Time Credit Act.
II. Standard of Review
Pursuant to 28 U.S.C. ' 636(b)(1)(C), this Court must conduct a de novo review
of the magistrate judge=s findings where objection is made. However, the Court is not
required to review, under a de novo or any other standard, the factual or legal
conclusions of the magistrate judge to which no objection is made. Thomas v. Arn, 474
U.S. 140, 150 (1985). Failure to file timely objections constitutes a waiver of de novo
review and of a Petitioner’s right to appeal this Court’s Order. 28.U.S.C..' 636(b)(1);
Snyder v. Ridenour, 889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce,
727 F.2d 91, 94 (4th Cir. 1984).
Objections to Magistrate Judge Trumble=s R&R were due within fourteen plus
three days of service. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). Petitioner filed his
objections on October 9, 2018. ECF No. 15. Having timely filed objections, the Court
will conduct a de novo review of the portions of the R&R to which the Petitioner objects.
III. Discussion
Magistrate Judge Trumble recommended that the petition be dismissed because
Petitioner has failed to exhaust all available administrative remedies.

Specifically,

Petitioner states in his petition that he still has two administrative proceedings pending.
Petitioner makes three objections to the R&R, two of which have no bearing on the
magistrate judge’s decision in dismissing the case. In Petitioner’s third objection, he

2

Petitioner was not resentenced on Count 4, which Petitioner was previously sentenced to not less than 5
years nor more than 15 years.
2

argues that both administrative remedies relied upon in dismissing this action have
been exhausted. Further, he states that “the attachments that was presented within the
Petitioner’s petition shows that the BP-9 was denied and the SENSITIVE BP-10’s
response was to complete the process.” ECF No. 15 at 2.
The first and second BP-9 rejections state “you may resubmit your request in
proper form within 5 days of the date of this rejection notice.” Petitioner states in his
petition that both of these were denied, but further states that the third BP-9 is still
pending. The Petitioner has not set forth information regarding the third BP-9 being
dismissed.

Furthermore, Petitioner does not provide the Court with information

regarding the resolution or dismissal of BP-10. Petitioner stated in his petition that his
BP-10 was also still pending. Review of the petition and objections shows a failure to
exhaust all administrative remedies prior to filing the instant § 2241 petition.
IV. Conclusion
Accordingly, upon careful review, the Court ORDERS that Magistrate Judge
Trumble’s Report and Recommendation [ECF No. 13] is ADOPTED for the reasons
more fully stated therein. The Petitioner’s § 2241 Petition [ECF No. 1] is DENIED and
DISMISSED WITHOUT PREJUDICE.
The Petitioner has not met the requirements for issuance of a certificate of
appealability. A court may issue a certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional right.”

28 U.S.C.

§.2253(c)(2). If a district court denies a petitioner’s claims on the merits, then “[t]he
petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000). “If, on the other hand, the denial was procedural, the petitioner
must show ‘that jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.’” United States
v. McRae, 793 F.3d 392, 397 (4th Cir. 2015) (quoting Slack, 529 U.S. at 484). Here,
upon a thorough review of the record, the Court concludes that the Petitioner has not
made the requisite showing.
The Clerk is DIRECTED to strike this matter from the Court’s active docket. The
Clerk is further DIRECTED to transmit copies of this Order to all counsel of record
herein and to mail a copy of this Order to the pro se Petitioner by certified mail, return
receipt requested.
DATED: October 31, 2018

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