Webb v. Figiel

Filing 68

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE 57 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE AND OVERRULING THE PETITIONER'S OBJECTIONS. The respondents 21 motion to dismiss is hereby GRANTED. The 1 petition for habeas corpus under § 2241 is DISMISSED WITH PREJUDICE. The petitioners 6 motion for expedited relief, 20 motion for release on personal and 32 motion for judgment on the pleadings are DENIED. Additionally, the petitioners 65 66 67 moti ons to transfer are DENIED. It is further ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/27/17. (copies to Pro Se Petitioner via CM/rrr; counsel via CM/ECF) (lmm) (Additional attachment(s) added on 3/27/2017: # 1 Certified Mail Return Receipt) (lmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEITH BRYAN WEBB,
Petitioner,
v.

Civil Action No. 5:16CV44
(STAMP)

STEVEN FIGIEL, Acting Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
AND OVERRULING THE PETITIONER’S OBJECTIONS
I.

Background

At issue is the petition of the pro se1 petitioner, a federal
prisoner, filed under 28 U.S.C. § 2241 (“§ 2241”).

The petitioner

was convicted in the United States District Court for the Western
District of Texas of second degree murder in violation of 18 U.S.C.
§ 1111 and two counts of injury to a child in violation of 18
U.S.C. §§ 7 and 13 and Texas Penal Code § 22.04(a).

In 1986, that

court sentenced the petitioner to life imprisonment and two terms
of thirty years imprisonment, all to be served concurrently.

The

petitioner’s first parole hearing was conducted in June 1993, and
the United States Parole Commission (the “Commission”) denied the
petitioner parole.

1

Statutory interim hearings have been conducted

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1416 (10th ed. 2014).

every two years since his first parole hearing, none of which has
resulted in a change since the July 1993 decision.
On April 28, 2008, the Commission conducted the petitioner’s
fifteen

year

reconsideration

hearing,

which,

pursuant

to

the

Commission’s rules, was conducted as a de novo evaluation of the
petitioner’s case looking at his entire incarceration as if it were
a new initial hearing.

After the petitioner’s fifteen year

reconsideration hearing, the Commission ordered that the petitioner
serve the expiration of his sentence, and the National Appeals
Board affirmed the Commission’s decision on administrative appeal.
Since the reconsideration hearing, the petitioner has continued to
receive his biannual statutory interim hearings, and the Commission
has not ordered at any of those hearings any change to its prior
order that the petitioner serve the expiration of his sentence.
On January 16, 2014, the Commission conducted a mandatory
parole hearing pursuant to 18 U.S.C. § 4206(d).
that

hearing,

the

Commission

denied

mandatory

As a result of
parole.

The

petitioner administratively appealed the decision, and the National
Appeals Board affirmed the Commission’s decision.
On January 5, 2016, the Commission attempted to conduct a
statutory interim hearing for the petitioner, but the petitioner
was uncooperative and refused to answer any of the examiner’s
questions.

Eventually, the petitioner stood up and walked out of

the hearing room, at which point the examiner informed him that his

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leaving would be considered a waiver of parole and he would have to
reapply to be placed back on the docket.

The Commission issued a

notice of action of January 27, 2016, which stated that the
petitioner’s failure to meaningfully participate in the interim
hearing operated as a waiver of the hearing.
On March 31, 2016, the petitioner filed a petition for habeas
corpus under 28 U.S.C. § 2241.

In the petition, the petitioner

alleges that (1) he is actually innocent of the crime of second
degree murder because he was not indicted for that offense, (2) the
Commission is unlawfully detaining him in violation of 18 U.S.C.
§ 4206(d), and (3) the Commission’s failure to grant him parole
constitutes

cruel

and

unusual

punishment.

For

relief,

petitioner seeks immediate release from federal custody.

the

After a

preliminary review of the file, the magistrate judge entered an
order to show cause directing the respondent to show cause why the
writ should not be granted.
The respondent then filed a motion to dismiss or, in the
alternative, for summary judgment.

The respondent argues that (1)

the petitioner’s innocence claim is an abuse of the writ and an
improper claim under § 2241, and (2) the petitioner is not entitled
to parole.

The petitioner then filed his Roseboro response.

United States Magistrate Robert W. Trumble then entered a
report and recommendation.

In that report and recommendation, the

magistrate judge recommends granting the respondent’s motion to

3

dismiss or, in the alternative, for summary judgment and denying
the petitioner’s motion for expedited relief, motion for release on
personal recognizance, and motion for judgment on the pleadings.
The magistrate judge also recommends that the petition for writ of
habeas corpus be denied and dismissed with prejudice.
The petitioner timely filed objections.

Additionally, after

the magistrate judge entered the report and recommendation, the
petitioner filed motions for transfer of this civil action to the
United

States

Pennsylvania.

District

Court

for

the

Middle

District

of

The petition explains in his motions for transfer

that he has been transferred from FCI-Gilmer in West Virginia to
USP-Allenwood in White Deer, Pennsylvania.
For the reasons set forth below, the report and recommendation
of the magistrate judge is affirmed and adopted, the petitioner’s
objections are overruled, and the petitioner’s motions to transfer
are denied.
II.

Applicable Law

Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made. Because the petitioner filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo as to those findings to
which the petitioner objected.

As to those findings to which

objections were not filed, all findings and recommendations will be

4

upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).

28

As the Supreme Court of the United States

stated in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395 (1948).
to

the

report

and

Because the petitioner filed objections

recommendation,

the

magistrate

judge’s

recommendation will be reviewed de novo.
III.

Discussion

The magistrate judge correctly found that the petitioner’s
innocence claim is an abuse of writ because it is successive to the
petitioner’s prior § 2241 petition filed in the United States
District Court for the District of Maryland on May 26, 2015.
Section 2244(a) provides:
No circuit or district judge shall be required to
entertain an application for writ of habeas corpus to
inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears
that the legality of such detention has been determined
by a judge or court of the United States on a prior
application for writ of habeas corpus, except as provided
in section 2255.
28 U.S.C. § 2244(a).

Section 2244(a) bars a subsequent § 2241

petition as a successive petition where the grounds raised in the
subsequent petition were denied in a prior § 2241 action.

See

Valona v. United States, 138 F.3d 693, 695 (7th Cir. 1998);
Chambers v. United States, 106 F.3d 472, 475 (2d Cir. 1997); Byrd
5

v. Gillis, No. CIV.A. 97-4697, 1997 WL 698157, at *1 (E.D. Pa. Nov.
5, 1997).

Under the abuse-of-writ doctrine, a court may dismiss a

subsequent petition when “a prisoner files a petition raising
grounds

that

were

available

but

not

relied

upon

in

a

prior

petition, or engages in other conduct that disentitles him to the
relief he seeks.”

Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6

(1986).
In this case, both the petitioner’s first and second petitions
raise the actual innocence claim, and the first petition in the
District of Maryland was dismissed for lack of jurisdiction.
No. 22-3.

ECF

Thus, the actual innocence claim in the second petition

must be barred as successive and as an abuse of the writ.

The

second petition also raises a claim regarding identification of the
child’s body and prosecutorial misconduct in closing arguments, but
those claims were available in 2015 and, thus, are also barred as
successive and as an abuse of the writ.
The magistrate judge also correctly found that, even if the
Court does not dismiss the actual innocence claim as an abuse of
the writ, it must still be dismissed because the petitioner
improperly filed a § 2241 petition without demonstrating that
§ 2255 is an inadequate or ineffective remedy regarding his claim
that the indictment was defective.
A § 2255 petition is meant to challenge the validity of a
conviction or sentence, and a § 2241 petition is intended to

6

address the execution of a sentence.

Section 2255 expressly

prohibits

their

prisoners

from

challenging

convictions

and

sentences through a habeas corpus petition under § 2241 unless the
savings clause of § 2255 applies.

The savings clause of § 2255 has

a stringent standard that the petitioner cannot satisfy. Under the
§ 2255 savings clause, it is the petitioner’s burden to demonstrate
that the § 2255 remedy is inadequate or ineffective. In the United
States Court of Appeals for the Fourth Circuit, the § 2255 remedy
is deemed inadequate or ineffective only when all three of the
following conditions are satisfied:
(1) at the time of the conviction, the settled law of
this Circuit or of the Supreme Court established the
legality of the conviction;
(2) subsequent to the prisoner’s direct appeal and first
§ 2255 motion, the substantive law changed such that the
conduct of which the prisoner was convicted is deemed not
to be criminal; and
(3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one of
constitutional law.
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000).
In this case, the petitioner cannot satisfy the second element
of Jones because murder remains a criminal offense.

Thus, even if

he could satisfy the first and third elements, he is nonetheless
not entitled to application of the savings clause because he has
attacked the validity of his conviction but not satisfied all three
required Jones elements.

Accordingly, the petitioner has not

demonstrated that the § 2255 remedy is inadequate or ineffective
and has improperly filed a § 2241 petition.
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As to the petitioner’s contention that the Commission is
unlawfully denying him parole in violation of 18 U.S.C. § 4206(d),
the magistrate judge correctly found that the petitioner “makes no
discernible argument that would support this Court’s intervention
in the decision by the Commission to deny him ‘mandatory parole.’”
ECF No. 57 at 13.

The standard for mandatory parole is as follows:

Any prisoner, serving a sentence of five years or longer,
who is not earlier released under this section or any
other applicable provision of law, shall be released on
parole after having served two-thirds of each consecutive
term or terms . . . [p]rovided, however, [t]hat the
Commission shall not release such prisoner if it
determines that he has seriously or frequently violated
institution rules and regulations or there is a
reasonable probability that he will commit any Federal,
State, or local crime.
18 U.S.C. § 4206(d) (emphasis in original).
The hearing examiner at the petitioner’s mandatory parole
hearing conducted on January 16, 2014, noted the following:
The Examiner finds that the prisoner has frequently or
seriously violated the rules of the institution or that
there is a likelihood that the prisoner will commit any
Federal, State or local crime based on the following
reasons: Specifically, you have a criminal record which
begins at age 14 and culminated at age 23 with your
brutal murder of a 6 year old boy.
You slammed the
victim’s head against a wall, and then you immersed his
body in scalding water causing the victim’s skin to peel
off from his thighs down.
Finally, you buried your
victim’s body and threatened his mother to keep quiet.
The Commission also finds you have serious[ly] violated
the rules of the institution [in] which you were
confined.
Specifically, you have incurred six
infractions consisting of engaging in sexual acts
(including masturbating openly in front of female staff),
the last occurring in February 2012 and you have two
infractions involving assault. Your prior record, base

8

offense and institutional misconduct show a propensity
for deviant and violent behavior.
ECF No. 22-1 at 60.

Thus, this Court agrees with the magistrate

judge that the Commission properly adopted the hearing examiner’s
findings and did not abuse its discretion in doing so.
As to the petitioner’s cruel and unusual punishment argument,
the magistrate judge properly noted that parole is rehabilitative,
not punitive.

See Gagnon v. Scarpelli, 411 U.S. 778, 784 (1973).

Thus, the magistrate judge correctly found that, because the
Commission has not imposed punishment, the petitioner’s Eighth
Amendment claim must fail. See Lustgarden v. Gunter, 966 F.2d 552,
555 (10th Cir. 1992) (“Denial of parole under a statute dictating
discretion in parole determination does not constitute cruel and
unusual punishment.”); Franklin v. Reilly, No. 1:08CV82, 2009 WL
86550, at *3-4 (N.D. W. Va. Jan. 9, 2009) (“[B]ecause parole
proceedings are not a part of criminal prosecutions, the actions of
the Commission do not constitute punishment.”).
Lastly,

the

magistrate

judge

correctly

found

that

the

petitioner’s challenge to the Commission’s decision at his January
2016 parole hearing must also fail.

“The Parole Act specifically

commits the decision to grant or deny parole to the unreviewable
discretion of the Parole Commission.”

Garcia v. Neagle, 660 F.2d

983, 988 (4th Cir. 1981). The Commission’s parole determination is
only reviewable if the Commission “exceeded its legal authority,
acted unconstitutionally, or failed to follow its own regulations.”
9

Id.

Here, the petitioner does not argue that any of those three

exceptions are applicable to his January 2016 parole hearing.
Thus,

this

Court

does

not

have

the

authority

to

review

the

Commission’s decision that the petitioner waived the hearing by
failing to meaningfully participate in the hearing.
In the petitioner’s motions to transfer, filed after the
magistrate

judge

entered

his

report

and

recommendation,

the

petitioner argues that this Court no longer has jurisdiction
because the petitioner is no longer incarcerated in the Northern
District of West Virginia. The petitioner argues that, as a result
of his transfer from FCI-Gilmer in West Virginia to USP-Allenwood
in White Deer, Pennsylvania, his case must be transferred to the
United

States

District

Court

for

the

Middle

District

of

Pennsylvania because the warden of USP-Allenwood is his “present
physical immediate confinement custodian.”
However, this Court does continue to have jurisdiction over
the petitioner’s case despite his transfer to USP-Allenwood.

In

considering another § 2241 petition, the Fourth Circuit held that
“[j]urisdiction is determined at the time an action is filed;
subsequent transfers of prisoners outside the jurisdiction in which
they filed actions do not defeat personal jurisdiction.”

United

States v. Edwards, 27 F.3d 564, 564 (4th Cir. 1994) (unpublished)
(citing Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990)); see
also Santillanes v. U.S. Parole Commission, 754 F.2d 887, 888 (10th

10

Cir. 1985) (“It is well established that jurisdiction attaches on
the

initial

filing

for

habeas

corpus

relief,

and

it

is

not

destroyed by transfer of the petitioner and the accompanying
custodial change.” (citing Ahrens v. Clark, 335 U.S. 188, 193
(1948))); Weeks v. Wyrick, 638 F.2d 690, 692 (8th Cir. 1981) (“Once
the custodian is properly served, subsequent transfer of the
petitioner does not cause a loss of habeas corpus jurisdiction in
the original district.”).

Thus, the petitioner’s motions to

transfer must be denied.
IV.

Conclusion

For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 57) is AFFIRMED and ADOPTED.
Therefore,

the

respondent’s

motion

to

dismiss

or,

in

the

alternative, motion for summary judgment (ECF No. 21) is hereby
GRANTED, and the petition for habeas corpus under § 2241 (ECF No.
1) is DISMISSED WITH PREJUDICE.

The petitioner’s motion for

expedited relief (ECF No. 6), motion for release on personal
recognizance (ECF No. 20) and motion for judgment on the pleadings
(ECF No. 32) are DENIED. Additionally, the petitioner’s motions to
transfer (ECF Nos. 65, 66, and 67) are DENIED.

It is further

ORDERED that this civil action be DISMISSED and STRICKEN from the
active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit

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on the issues to which objection was made, he is ADVISED that he
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
DATED:

March 27, 2017

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

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