Whipple v. Heckard
Filing
39
MEMORANDUM OPINION AND ORDER denying as moot Petitioner's 25 and 31 Objections; denying as moot Petitioner's 26 , 27 and 30 Motions to extend the time to file objections; adopting the 12 Proposed Findings and Recommendations; d enying as moot Petitioner's 38 Motion for Voluntary Dismissal; denying Petitioner's 1 Petition for Writ of Habeas Corpus (2241) and 8 Amended Petition for Writ of Habeas Corpus (2241); and dismissing the matter. Signed by Judge Frank W. Volk on 11/2/2023. (cc: counsel of record; any unrepresented party) (btm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
ROBERT Z. WHIPPLE, III,
Petitioner,
v.
CIVIL ACTION NO. 5:23-cv-00416
WARDEN KATRINA HECKARD, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
Pending is
Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 [Doc. 1], filed May 30, 2023, Amended Petition for Writ of Habeas
Corpus pursuant to § 2241 [Doc. 8], filed June 13, 2023, and Motion for Voluntary Dismissal
[Doc. 38], file October 30, 2023. This action was previously referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission of proposed findings and a
is PF&R on June 15, 2023.
Magistrate Judge Tinsley recommended that the Court Dismiss deny
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [Doc. 1] and Amended Petition for Writ of
Habeas Corpus [Doc. 8] and dismiss this action. Mr. Whipple timely objected. [Doc. 28].1
1
The Court has received several copies of
objections
sent July 6, 2023, as timely [Doc. 28]. Accordingly, the Court DENIES
AS MOOT those objections filed August 14, 2023 [Doc. 25] and August 18, 2023 [Doc. 31
motions to extend the time to file objections [Docs. 26, 27, 30] are also DENIED AS MOOT.
I.
§ 636(b)(1). The Court need not review, under a de novo or any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the findings or recommendation to
which no objections are addressed. See Thomas v. Arn, 474 U.S. 140 (1985); see also 28 U.S.C.
§
portions of the report or specified proposed findings or recommendations to which objection is
made
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
II.
Mr. Whipple
hallenge
the conditions of his confinement as opposed to the fact or duration of his imprisonment and thus,
are not cognizable pursuant to § 2241 [Doc. 28 at 1 4]. The Supreme Court of the United States
has not yet determined the scope or availability of a habeas remedy in conditions of confinement
challenges. See Ziglar v. Abassi, 582 U.S. 120, 145 (2017). There is a circuit split on whether
habeas claims can raise challenges to conditions of confinement, with most circuits concluding
that they cannot. See Wilborn v. Mansukhani
cases). The United States Court of Appeals for the Fourth Circuit has yet to address this question
in a published opinion but has held that conditions of confinement claims are not cognizable in
habeas proceedings in several unpublished decisions. See, e.g., Wilborn, 795 F. App x. at 164
2
Rodriguez v. Ratledge, 715 F. App x. 261, 266 (4th Cir. 2017) (explaining
petitioner
claim is cognizable under § 2241, but his challenge to the
conditions of his confinement is not). Accordingly, the Court finds that a § 2241 petition may be
properly used to attack the allegedly unlawful computation and
but not the conditi
Therefore, the Court ADOPTS the PF&R [Doc. 12], DENIES AS MOOT
Doc. 38], DENIES
Petition for Writ
of Habeas Corpus pursuant to 28 U.S.C. § 2241 [Doc. 1] and Amended Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 [Doc. 8], and DISMISSES the matter.
The Court directs the Clerk to transmit a copy of this Order to any counsel of record
and any unrepresented party.
ENTER:
3
November 2, 2023
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