Luczak v. Coakley

Filing 53

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 45 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING 48 PETITIONERS OBJECTIONS, AND DENYING AS MOOT 49 PETITIONERS MOTION FOR INJUNCTIVE RELIEF AND 51 MOTION FOR EXPEDITED RULING. The respondents motions to dismiss or for summary judgment 15 and 26 are GRANTED and the 1 petitioners petition for habeas corpus pursuant to 28 U.S.C. § 2241 and 9 amended petition are DENIED and DISMISSED WITH PREJUDICE. Further, [23 ] petitioners motion to compel, 34 omnibus motion, 36 motion for appointment of counsel, and 37 combined motion are DENIED AS MOOT. It is further ORDERED that this case be DISMISSED WITH PREJUDICE and STRICKEN from the active docket of this Co urt. Should the petitioner choose to appeal, he is ADVISED that he must file a notice of appeal within 60 days after the date of the entry of this order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 9/10/2018. (copy to Pro Se Petitioner via CM,rrr; copy to counsel via CM/ECF) (nmm) (Additional attachment(s) added on 9/10/2018: # 1 Certified Mail Return Receipt) (nmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
CASEY LUCZAK,
Petitioner,
v.

Civil Action No. 5:16CV189
(STAMP)

JOE COAKLEY, Warden,
Respondent.
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
OVERRULING PETITIONER’S OBJECTIONS,
AND DENYING AS MOOT PETITIONER’S
MOTION FOR INJUNCTIVE RELIEF
AND MOTION FOR EXPEDITED RULING
I.

Procedural History

The pro se1 petitioner, Casey Luczak, filed a petition for
habeas corpus under 28 U.S.C. § 2241 (“§ 2241”).

ECF No. 1.

The

petitioner also filed a motion for injunctive relief for release
from custody under 42 U.S.C. § 17541(b) (ECF No. 49 at 5), and a
motion titled as “Motion for Expedited Service,” which will be
construed by this Court as a motion for an expedited ruling (ECF
No. 51). The action was referred to United States Magistrate Judge
James E. Seibert for initial review and report and recommendation
pursuant to Local Rule of Prisoner Litigation Procedure 2.

1

“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).

On December 21, 2016, the petitioner filed a petition for
habeas corpus under 28 U.S.C. § 2241.

ECF No. 1.

The petitioner

alleges that: (1) the petitioner was illegally held in a lowsecurity prison for 13 months after surrendering to a satellite
prison camp by court order, (2) the Federal Bureau of Prisons
(“BOP”) has been illegally taking payments under the guise of the
Inmate Financial Responsibility Program (“IFRP”) from petitioner’s
prison account for 77 months in disregard of a court order, (3) the
BOP refuses to assure petitioner can be released on the specific
date he completes 75% of his originally imposed sentence, and
refuses to credit him with his good time credits in accord with the
BOP Program Statement, (4) the BOP refuses to file a motion to
petitioner’s sentencing court for sentence reduction based on four
constitutional issues which include (a) the premature seizure of
untainted assets, which deprived the petitioner of hiring counsel
of choice with his own funds, (b) trial counsel’s inducement for
petitioner to change his plea to guilty with no sentencing plan in
place, (c) petitioner’s fatally defective indictment, and (d)
malicious prosecution that lead to a fraudulent restitution list
and amount.

ECF No. 1 at 5-6.

The magistrate judge’s report and

recommendation also considered his first amendment to his § 2241
petition (ECF No. 9).

See ECF No. 45 at 9-10.

On September 27, 2017, the respondent filed a motion to
dismiss or in the alternative for summary judgment.

2

ECF No. 15.

The respondent argues that: (1) the petitioner failed to exhaust
his administrative remedies, (2) the petitioner is a voluntary
participant in the IFRP program and can withdraw at any time, (3)
the petitioner does not have a right to placement in the facility
of his choice, (4) the court lacks subject matter jurisdiction to
review petitioner’s conditions of confinement claim pursuant to 28
U.S.C. § 2241, and (5) petitioner cannot meet the Jones criteria to
challenge his conviction and sentence.

ECF No. 16 at 9-21.

petitioner filed his Roseboro reply on October 19, 2017.
No. 22.

The
ECF

In his reply, the petitioner requests that this Court

remand his case for re-sentencing to time served based on his
wrongful custody placement and IFRP claim.

ECF No. 22 at 2.

The

petitioner also requests that his five years of supervised release
be dismissed and his assets be returned.

ECF No. 22 at 2.

On November 3, 2017, the petitioner filed a motion to amend
his complaint indicating that he had made it clear that he would
stay with his common law wife after incarceration, but that the
case

manager

advised

petitioner

that

the

probation

office

disapproved of his living with her because she should have been
indicted.

ECF No. 23 at 6.

The petitioner maintains that this

confirms that the execution of the sentence by the BOP is improper
and illegal.

ECF No. 23 at 6.

For relief, he seeks that the BOP

be ordered to release him to a Residential Reentry Center (“RRC”)
placement ten months prior to his home detention eligibility date,

3

specifically the Talbert House Cornerstone.

ECF No. 23 at 10.

Also, the petitioner asks for an order compelling the probation
office to produce the letter disapproving his relocation to his
common law wife’s home.

ECF No. 23 at 10.

On December 6, 2017, the respondent filed a motion to dismiss
or in the alternative for summary judgment of petitioner’s amended
petition.

ECF No. 26.

The respondent argues that (1) the

petitioner’s supervised release claim is not cognizable under 28
U.S.C. § 2241, (2) the petitioner does not have a right to
placement in the facility of his choice, (3) the petitioner cannot
meet the Jones criteria to challenge his conviction and sentence;
and (4) the petitioner’s motion to compel denial of petitioner’s
release plan should be denied because the respondent was supposed
to defer to the probation officer.

ECF No. 27 at 6-13.

The petitioner then filed what he titled as “Omnibus Motion:
(1)

Petitioner’s

Rejoinder

to

Respondent’s

Motion

to

Dismiss

Amended Petition, or in the Alternative for Summary Judgment and
Response

to

Show

Cause;

(2)

Petitioner’s

Motion

to

Strike

Respondent’s Motion to Dismiss Plaintiff’s Amended Motion, or in
the Alternative for Summary Judgment; (3) Petitioner’s Motion for
Summary

Judgment;

and

(4)

Recognizance Pending Appeal.”

Motion

for

ECF No. 34.

Release

on

Personal

The petitioner asserts

that “[h]e now compromises that he holds contiguous eligibility for
a non-medical elderly inmate decrease in sentence by way of

4

freedom from the ‘unlawful’ extortion of an ‘involuntary’ monthly
fee having been withdrawn from his isolated prison account for 89
months under the beclouding of policy through the . . . IFRP . . .”
ECF No. 34 at 1.

In his reply, the petitioner takes note of the

procedural history, the BOP’s awareness of the court order, and
that respondent’s action prompts entry of Presentence Investigation
Report (“PSR”) evidence.

ECF No. 34 at 2-9.

He also explains that

the PSR was tampered with and that he has been over-sentenced with
supervised release.

ECF No. 34 at 10-15.

He asserts that PSR

tampering proves that four-level enhancement is impossible.

He

further argues that the Federal Bureau of Investigation only
reported $19,100.00 of the $35,000.00 that was retrieved in a raid
and that $1,977,500.00 was never mentioned throughout the legal
proceeding. ECF No. 34 at 17. Finally, the petitioner argued that
the respondent misconstrued the court’s interpretation of the
amendment.

ECF No. 34 at 20-25.

The petitioner filed a new motion

for leave to file exhibits in response to respondent’s motion to
dismiss.

ECF No. 35 at 1.

On May 14, 2018, the petitioner filed what he called “Combined
Motion; (1) Insistent on Immediate Partial Summary Judgment with
Declaration in Support; (2) To Compel Discovery for Inspection with
Affidavit in Support.”

ECF No. 37.

The petitioner requests that

the Court order the BOP to produce in discovery the petitioner’s
PSR.

ECF No. 37 at 7.

5

United States Magistrate Judge James E. Seibert then entered
a report and recommendation recommending that respondent’s motions
to dismiss or for summary judgment (ECF Nos. 15 and 26) be granted
and the petitioner’s petition for habeas corpus pursuant to 28
U.S.C. § 2241 (ECF No.1) and amended petition be denied and
dismissed with prejudice.

ECF No. 45 at 28.

The magistrate judge

also recommended that the petitioner’s motion to compel (ECF No.
23), omnibus motion (ECF No. 34), motion for appointment for
counsel (ECF No. 36), and combined motion (ECF No. 37) be denied as
moot.

Id.

The magistrate judge informed the parties that if they

objected to any portion of the report and recommendation, they were
required to file written objections within 14 days after being
served with copies of the report. Id.
objections.

The petitioner timely filed

ECF No. 48.
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
upheld unless they are “clearly erroneous or contrary to law.”
U.S.C. § 636(b)(1)(A).

6

28

III.

Discussion

Because the petitioner filed objections to the report and
recommendation,

this

Court

reviews

the

magistrate

judge’s

recommendation de novo as to those findings to which objections
were made.
For the reasons stated below, this Court adopts and affirms
the report and recommendation of the magistrate judge (ECF No. 45),
overrules the petitioner’s objections (ECF No. 48), and dismisses
the petitioner’s petition for habeas corpus pursuant to 28 U.S.C.
§ 2241 and amended petition (ECF Nos. 1 and 9) with prejudice.
This Court further denies the petitioner’s motion for a preliminary
injunction (ECF No. 49) and motion for an expedited ruling (ECF No.
51).
In his objections, the petitioner argues that the law violates
the Due Process Clause of the Fifth and Fourteenth Amendments. ECF
No. 48 at 6.

The petitioner explains that there was PSR tampering

by government officials and malicious prosecution.

Id. at 9.

The

petitioner then argues that, “when any filing takes 20 months to
deliver judgment, and this filing has only reached the R&R stage,
it inevitably violates the petitioner’s due process rights.

The

time delay oftentimes affects the entire legal proceeding since
changes and new events alter the expectations, as in the case at
bar.”

Id. at 10, 13.

He additionally asserts that the “[C]ourt

erred by failing to apply Fed. R. Crim. P. 32(3)(c)(D).

7

With this

tampering being so severe, the court should have made a finding and
prepared a written record of that finding and determination.

In

turn, the result should have been appended and made available to
the BOP.”

Id. at 14.

With respect to his placement after release,

the petitioner argues that the probation officer does not hold the
authority to deny his placement and he asks the court to issue an
injunction. Id. at 16. Moreover, the petitioner argues that BOP’s
discretion with respect to his RRC placement violated his liberty
interest.

Id. at 17.

Specifically, the petitioner was allegedly

advised that he was unsuitable for RRC placement due to his medical
care

status

and

ongoing

treatment/surveillance,

which

the

petitioner challenges as irrational because the petitioner never
needed treatment of any kind, “and what 80-year-old is not under
surveillance for something?”.

Id. at 18.

Further, the petitioner

argues that although the IFRP program is “voluntary” it would have
been burdensome if he did not participate. Id. at 19-20. Finally,
the

petitioner

asserts

that

his

custody

classification

is

inappropriate, explaining that he is imprisoned with people half
his age and with higher custody classifications.

Id. at 20-21.

For relief, he asks the court to order the BOP to grant him six
months of home confinement.

Id. at 19.

After filing his objections, the petitioner also filed a
motion for a provisional injunction on August 20, 2018. ECF No. 49.
The purpose of the injunction is to “prevent the petitioner from

8

suffering irreparable harm while he awaits final disposition of
this

§

2241,

keeping

to

the

forefront

the

fact

he

presents

irrefutable evidence that his PSR has been illegally tampered with
in a blatant breach of ‘obstruction of justice.’”

Id. at 1.

He

also insists on release from custody under 42 U.S.C. § 17541(b).
Id. at 5.

Additionally, the petitioner filed a motion for an

expedited ruling on August 20, 2018.

ECF No. 51.

Upon de novo review, this Court is of the opinion that the
magistrate judge’s report and recommendation should be adopted and
affirmed in its entirety and the petitioner’s objections should be
overruled in that the magistrate judge correctly found that, first,
the petitioner failed to exhaust administrative remedies.
45 at 14.

ECF No.

The magistrate judge noted that the BOP provides a four-

step administrative process for prisoner grievances and that an
inmate is not deemed to have exhausted his administrative remedies
until he has filed his complaint at all four levels.

Id. at 13.

The magistrate judge further explained that the petitioner alleges
that he exhausted his administrative remedies with regard to the
IFRP because the IFRP is central to the collection of restitution,
and he therefore attacked the IFRP through his forged restitution
list.

Id. at 14.

However, the grievance was rejected, and the

petitioner did not file an appeal.

Id.

that

when

he

presented

his

IFRP

claim

The petitioner claimed
legal

documents

were

presented to the BOP clearly stating a court order contradicted

9

withdrawals.

ECF No. 22 at 14.

However, the magistrate judge

correctly found that the grievance was not exhausted until after
the petition was filed; therefore, the court could refuse to
address claims raised in his petition other than his compassionate
release claim. ECF No. 45 at 14. Ultimately, the magistrate judge
rightfully concluded that despite the failure to exhaust remedies,
since the exhaustion requirement is only judicially imposed in
these

proceedings,

requirement.

the

court

Id. at 15-16.

has

discretion

to

waive

the

The magistrate judge was justified in

choosing to do so in this case to save judicial time and resources.
Id.
Second, the magistrate judge correctly concluded that the
petitioner cannot complain that the BOP is collecting restitution
payments after he elected to participate in the IFRP.

Id. at 17.

The judge noted that after a prisoner has chosen to participate in
the program, the BOP has authority to encourage voluntary payments
in excess of those required by court judgment by conditioning the
receipt of certain privileges during the term of imprisonment on
the inmate’s participation in the IFRP.

Id. (citing United States

v. Lemoine, 546 F. 3d 1042 (9th Cir. 2008); McGhee v. Clark, 166 F.
3d 884 (7th Cir. 1999)).
Third, the magistrate judge was justified in finding that the
petitioner was ineligible for compassionate release since he has
not served ten years, or 120 months. ECF No. 45 at 18.

10

He noted

that under the BOP Program Statement § 5050.49, compassionate
release applies to prisoners age 65 years or older who have served
the greater of ten years or 75% of the term of imprisonment to
which

the

inmate

was

sentenced.

Id.

at

17-18.

Since

the

petitioner was sentenced to 121 months of imprisonment, 75% of the
sentence is slightly more than 90 months.

Id. at 18.

Fourth, the magistrate judge correctly held that the Court and
the sentencing court does not have authority to resentence the
petitioner.

Id.

at 19.

Specifically, the magistrate judge

referenced 18 U.S.C. § 3582(c)(1)(a)(I) which states that upon
motion of the Director of the Federal Bureau of Prisons, the Court
may reduce the term of imprisonment, if it finds that extraordinary
and compelling reasons warrant a reduction.

Id. at 18.

Under the

United States Sentencing Guidelines, extraordinary and compelling
reasons include medical conditions, age, family circumstances, and
other reasons as determined by the Director.

Id. The petitioner’s

arguments are challenges to his conviction and do not fit the
definition of extraordinary and compelling reasons.
Fifth,

the

magistrate

judge

correctly

Id. at 19.

found

that

the

petitioner’s allegations with respect to 13 months incarceration in
a low security prison fails to state a claim for habeas relief.
Id. at 20.

The magistrate judge noted that the power to designate

the place of confinement of a federal prisoner rests with the
United States Attorney General and that the BOP has discretion to

11

determine where a federal prisoner is incarcerated.

Id. at 19

(citing Ange v. Paderick, 521 F.2d 1066, 1068 (4th Cir. 1975);
Cochran v. Morris, 73 F.2d 1310, 1318 (4th Cir. 1996)).

Further,

the judge correctly held that a prisoner has no constitutional
right to be placed in a certain correctional facility and has no
legitimate statutory basis.

ECF No. 45 at 19 (citing Olim v.

Wakinekona, 461 U.S. 238-244-45 (1983); Meachum v. Fano, 427 U.S.
215, 244-25 (1976); Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)).
Sixth, the magistrate judge properly recommended dismissal of
the petitioner’s claims regarding conditions of his confinement.
ECF No. 45 at 20-21.

The judge correctly referenced 28 U.S.C.

§ 2241, which allows petitions to attack the manner in which a
sentence is executed, and permits challenges to the fact or
duration

of

confinement.

Id.

at

20.

This

does

not

include

challenges regarding the conditions of confinement which may be
brought in a civil rights action.

Id.

Seventh, the magistrate judge rightfully recommended dismissal
of the petitioner’s challenge regarding his residence with his
common law wife upon release.

Id. at 21-22.

The magistrate judge

found that disapproval of his release plan does not affect the fact
or duration of confinement and is therefore not cognizable in a
habeas corpus petition. Id. Moreover, any discovery involving such
disapproval is not appropriate.

Id. at 22.

12

Eighth, the magistrate judge correctly held that the Court may
not grant the petitioner relief with respect to RRC placement. Id.
The magistrate judge noted that the petitioner has no protected
liberty interest in being placed in RRC prior to release and such
decisions fall within the discretion of prison management. Id.
Further, the petitioner makes no claim that the BOP failed to make
an individualized assessment to confine him in a RRC.

Id. at 23.

Ninth, the magistrate judge rightfully recommended dismissal
of the petitioner’s challenge regarding his supervised release,
finding that such a challenge is an attack on the legality of the
sentence and not proper under a § 2241 petition.

Id.

Tenth, the magistrate judge found that the petitioner is not
entitled to the application of the saving clause of § 2255 under
either the Jones or Wheeler tests.

Id. at 27-28.

Under the Jones

test, § 2255 is deemed to be “inadequate and ineffective” to test
the legality of a conviction when: (1) settled law established the
legality

of

conviction

at

the

time

of

conviction,

(2)

the

substantive law changed so that the conduct of which the prisoner
was convicted is not criminal after the prisoner’s direct appeal
and first § 2255 motion, and (3) the prisoner cannot meet the gatekeeping

provisions

constitutional law.

of

§

2255

because

the

new

rule

is

not

Id. at 26 (citing In re Jones, 226 F.3d 328,

333-34 (4th Cir. 2000)).

Under the Wheeler test, § 2255 is

“inadequate and ineffective” to test the validity of a sentence

13

when four conditions are satisfied: (1) settled law of the United
States Court of Appeals for the Fourth Circuit or Supreme Court
established the legality of the sentence at the time of sentencing,
(2) after the petitioner’s direct appeal and first § 2255 motion,
the law changed and applies retroactively on collateral review,
(3) the prisoner is unable to meet § 2255(h)(2) for later motions,
and (4) due to a retroactive change, the sentence now presents an
error that is a fundamental defect.

ECF No. 45 at 27 (citing

United States v. Wheeler, 886 F.3d 415, 429 (4th Cir. 2018)).

The

magistrate judge correctly held that the petitioner’s assertions
challenge the legality of his conviction and that even if the first
and third elements of Jones are satisfied, the second element is
not satisfied. ECF No. 45 at 27.
Further,

this

Court

notes

that

soon

after

filing

his

objections, the petitioner filed two motions. First, the petitioner
filed a motion for a provisional injunction on August 20, 2018.
ECF No. 49. The purpose of the injunction is to “prevent the
petitioner from suffering irreparable harm while he awaits final
disposition of this § 2241, keeping to the forefront the fact he
presents irrefutable evidence that his PSR has been illegally
tampered with in a blatant breach of ‘obstruction of justice.’” Id.
at 1.

He also insists upon release from custody under 42 U.S.C. §

17541(b)

and

six

months

of

home

14

confinement.

Id.

at

4-5.

Additionally, the petitioner filed a motion for an expedited ruling
on August 20, 2018.

ECF No. 51.

The standard for granting injunctive relief in this circuit is
set forth in International Refugee Assistance Project v. Trump, 857
F.3d 554 (4th Cir. 2017), cert. granted, 137 S. Ct. 2081 (2017).
“A preliminary injunction is an ‘extraordinary remedy,’ which may
be awarded only upon a ‘clear showing’ that a plaintiff is entitled
to such relief.”

Int’l Refugee Assistance Project, 857 F.3d at

607-08 (citing Real Truth About Obama, Inc. v. Federal Election
Commission, 575 F.3d 342 (4th Cir. 2009) (citing Winter v. Natural
Resources Defense Counsel, Inc., 555 U.S. 7 (2008))).

Under the

Fourth Circuit standard of review, “[a] preliminary injunction must
be supported by four elements: (1) a likelihood of success on the
merits, (2) that the plaintiff likely will suffer irreparable harm
in the absence of preliminary relief, (3) that the balance of
equities tips in the plaintiff’s favor, and (4) that a preliminary
injunction is in the public interest.”

Id. at 608 (citing Real

Truth, 575 F.3d at 346).
Upon review of the petitioner’s post-objection motions, this
Court finds that the petitioner is not entitled to injunctive
relief. Looking at the first of the four International Refugee
factors, this Court finds that the petitioner cannot succeed on the
merits. The petitioner cannot succeed on the merits for the same
reasons this Court approves the magistrate judge’s recommendation

15

to grant the respondent’s motion to dismiss. Namely, the petitioner
has failed to allege any facts and to provide any evidence as to
why the petitioner is entitled to such relief under 42 U.S.C. §
17541(b).
Second, this Court finds that the petitioner has failed to
show

that

he

will

preliminary relief.

likely

suffer

irreparable

harm

without

The petitioner must show “that injury is

certain, great, actual and not theoretical.”

Harper v. Blagg, No.

2:13CV19796, 2014 WL 3750023, at *2 (S.D. W. Va. May 21, 2014)
(quoting Tanner v. Fed. Bureau of Prisons, 433 F. Supp. 2d 117, 125
(D.D.C. 2006)).

Here, the petitioner will not suffer irreparable

harm in the event that he is not released from custody because his
purported injury is an infringement on his “liberty interest”
protected by the Due Process Clause (see ECF No. 49 at 2) that this
Court has determined to be without merit for the reasons set forth
above.
Third, this Court finds the balance of equities tips in favor
of the respondent.

The balance of equities cannot tip in favor of

the petitioner because he has not demonstrated that his sentence is
illegal.

Furthermore, the petitioner has failed to demonstrate

that it was not within the sound discretion of the government to
deny home confinement.
Lastly, this Court finds that the public interest is in favor
of the respondent.

As the petitioner points out, it is “always in

16

the public interest for government officials, including prison
personnel, to obey the law . . .” (ECF No. 49 at 4).

Because the

petitioner has failed to present any evidence to establish an
injury, and because the petitioner has failed to meet the other
International Refugee factors, it is not in the public interest for
this Court to grant an injunction ordering the BOP to release the
petitioner to six months of home confinement.
For those reasons, the petitioner’s motion for a preliminary
injunction would be denied on the merits even if the Court were not
already denying it as moot.

Similarly, petitioner’s motion for an

expedited ruling is denied as moot.
IV.

Conclusion

For the reasons discussed above, the report and recommendation
of the magistrate judge (ECF No. 45) is hereby AFFIRMED and ADOPTED
and

the

petitioner’s

objections

(ECF

No.

48)

are

OVERRULED.

Specifically, the respondent’s motions to dismiss or for summary
judgment (ECF Nos. 15 and 26) are GRANTED and the petitioner’s
petition for habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1)
and amended petition (ECF No. 9) are DENIED and DISMISSED WITH
PREJUDICE.

Further, petitioner’s motion to compel (ECF No. 23),

omnibus motion (ECF No. 34), motion for appointment of counsel (ECF
No. 36), and combined motion (ECF No. 37) are DENIED AS MOOT.
Petitioner’s post-objection motion for a preliminary injunction

17

(ECF No. 49) and motion for an expedited ruling (ECF No. 51) are
DENIED AS MOOT.
It is further ORDERED that this case be DISMISSED WITH
PREJUDICE 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
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 the pro se petitioner by certified mail and to
counsel of record herein.

Pursuant to Federal Rule of Civil

Procedure 58, the Clerk is DIRECTED to enter judgment on this
matter.
DATED:

September 10, 2018

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

18