Taylor v. Johnson

Filing 13

MEMORANDUM OPINION AND ORDER: The court ADOPTS the 10 Proposed Findings and Recommendation by Magistrate Judge Omar J. Aboulhosn, DISMISSES Petitioner's 1 Section 2241 Petition and directs the Clerk to remove this matter from the court's docket. The court DENIES a certificate of appealability. Signed by Senior Judge David A. Faber on 4/13/2017. (cc: Petitioner and counsel of record) (arb)

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

CIVIL ACTION NO. 1:16-07498

B.J. JOHNSON, 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).

See Doc. No. 3.

Magistrate Judge Aboulhosn submitted to the court his PF&R
on February 3, 2017, in which he recommended that the court
dismiss Petitioner’s Application for Writ of Habeas Corpus under
28 U.S.C. § 2241 by a Person in State or Federal Custody; and
remove this matter from the court’s docket.
In accordance with 28 U.S.C. § 636(b), the parties were
allotted seventeen days in which to file any objections to the
Magistrate Judge’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.
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See Snyder v.

Ridenour, 889 F.2d 1363 (4th Cir. 1989).

Petitioner filed his

objections to the Magistrate Judge’s PF&R.
Petitioner claims that he should not have been required to
exhaust his remedies administratively and that the Bureau of
Prisons (“BOP”) lacks the authority to impose sanctions upon
Petitioner.

As for exhaustion, Petitioner may not be excused

from exhausting his administrative remedies because he
anticipates that he will not succeed.

Only in exceptional

circumstances, which do not exist here, might Petitioner be
excused.

See Thethford Properties IV Ltd. Partnership v. U.S.

Dept. of Housing & Urban Development, 907 F.2d 445, 450 (4th
Cir. 1990) (“Absent a clear showing that an administrative
agency has taken a hard and fast position that makes an adverse
ruling a certainty, a litigant’s prognostication that he is
likely to fail before an agency is not a sufficient reason to
excuse the lack of exhaustion.”); Dagley v. Johns, 2012 WL
2589996, *2 (E.D.N.C. July 3, 2012)(“[A] petitioner’s conclusory
prediction of failure is not sufficient to excuse his lack of
administrative exhaustion.”).

Thus, Petitioner’s exhaustion

objection fails.
With respect to the sanctions, any sanctions imposed upon
Petitioner following the rehearing will be imposed by a
Discipline Hearing Officer (“DHO”) who is a member of the BOP’s
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staff, pursuant to 28 C.F.R. § 541.1.

Since “Petitioner’s claim

that he was improperly sanctioned by a non-BOP DHO is rendered
moot by his rehearing,” Doc. No. 10, there is no live case or
controversy that a federal court is competent to adjudicate.
See Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).
Indeed, the “litigant must have suffered, or be threatened with,
an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.”
omitted).

Id. (citations

“If intervening factual . . . events effectively

dispel the case or controversy during pendency of the suit, the
federal courts are powerless to decide the questions presented.”
Ross v. Reed, 719 F.2d 689, 693-94 (4th Cir. 1983).

As a

result, Petitioner’s sanctions objections are unavailing.
Accordingly, the court adopts Magistrate Judge Aboulhosn’s
PF&R as follows:
1) Petitioner’s Application for Writ of Habeas Corpus under
28 U.S.C. § 2241 by a Person in State or Federal Custody
is DISMISSED; and
2) The Clerk is directed to remove this matter from the
docket of the court.
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
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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.
See 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,
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
Memorandum Opinion and Order to counsel of record and to
Petitioner.
It is SO ORDERED this 13th day of April, 2017.

ENTER:
David A. Faber
Senior United States District Judge

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