Benoit v. Rickard

Filing 24

MEMORANDUM OPINION AND ORDER: The court ADOPTS the 18 Proposed Findings and Recommendation by Magistrate Judge Aboulhosn and DISMISSES Petitioner's 2 Section 2241 Petition. Furthermore, the court DENIES Petitioner's 21 and 23 Motion to Reconsider the Order denying Petitioner's "Motion to Compel" and Petitioner's "Motion to Compel the Release [of] Information Re: 224 Conduct Code." The court DENIES a certificate of appealability. The Clerk is directed to remove this matter from the court's docket. Signed by Senior Judge David A. Faber on 2/7/2017. (cc: Petitioner, pro se and counsel of record) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
JO BENOIT,
Petitioner,
v.

CIVIL ACTION NO. 1:16-00073

BARBARA RICKARD, Warden,
Respondent.

MEMORANDUM OPINION AND ORDER
By Standing Order, this matter was referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
proposed findings and recommendations (“PF&R”) for disposition
pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. No. 3.)
Magistrate Judge Aboulhosn submitted to the court his PF&R
on September 28, 2016, in which he recommended that the Court
dismiss Petitioner’s Application under 28 U.S.C. § 2241 for Writ
of Habeas Corpus by a Person in State or Federal Custody (Doc.
No. 2) and remove this matter from the court’s docket.

On the

same date, Magistrate Judge Aboulhosn denied Petitioner’s
“Motion to Compel” (Doc. No. 13) and Petitioner’s “Motion to
Compel the Release [of] Information Re: 224 Conduct Code” (Doc.
No. 15).

Petitioner filed a Motion to Reconsider these denials

on December 15, 2016.

(Doc. No. 23.)

In accordance with 28 U.S.C. § 636(b), the parties were
allotted seventeen days in which to file any objections to
Magistrate Judge Aboulhosn’s PF&R.

The failure of any party to

file such objections within the time allotted constitutes a
waiver of such party’s right to a de novo review by this court.
Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Petitioner

filed her objections on October 7, 2016, and again on October
20, 2016.
Petitioner argues that the Inmate Financial Responsibility
Program (IFRP) obligations imposed on her were legally
incorrect.

Quite to the contrary, the court finds Magistrate

Judge Aboulhosn’s decision as to the IFRP to be accurate.

But

even if they were not, as Magistrate Judge Aboulhosn pointed
out, Petitioner still would be out of luck since she has not
exhausted her administrative remedies within the Bureau of
Prisons.

“Although 28 U.S.C. § 2241 does not contain a

statutory exhaustion requirement, [c]ourts consistently require
prisoners to exhaust their administrative remedies prior to
seeking habeas review under Section 2241.”
Petitioner has not done so.

As such, Petitioner has no right to

federal habeas relief.

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(Doc. No. 18.)

Accordingly, the court adopts Magistrate Judge Aboulhosn’s
PF&R and his Order denying Petitioner’s Motions to Compel (Doc.
No. 19) as follows:
1) Petitioner’s Petition for a Writ of Habeas Corpus by a
Person in State or Federal Custody Pursuant to 28 U.S.C.
§ 2241 (Doc. No. 2) is DISMISSED; and
2) The Clerk is directed to remove this matter from the
docket of the court.
Furthermore, Petitioner’s Motion to Reconsider the Order
denying Petitioner’s “Motion to Compel” (Doc. No. 13) and
Petitioner’s “Motion to Compel the Release [of] Information Re:
224 Conduct Code” (Doc. No. 15) are DENIED.
Additionally, the court has considered whether to grant a
certificate of appealability.

See 28 U.S.C. § 2253(c).

A

certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

The standard is satisfied only upon a showing that

reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336—38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
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683—84 (4th Cir. 2001).

The court concludes that the governing

standard is not satisfied in this instance.

Accordingly, the

court DENIES a certificate of appealability.
The Clerk is further directed to forward a copy of this
Order to counsel of record and to Petitioner, pro se.
It is SO ORDERED this 7th day of February, 2017.

ENTER:

David A. Faber
Senior United States District Judge

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