Opinion
C. A. 4:21-456-TLW-TER
08-02-2021
Moises A. Negron-Soto, #51846-069, Petitioner, v. Stevie Knight, Warden, Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Petitioner, proceeding pro se, brings this action pursuant to 28 U.S.C. § 2241 for habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c), D.S.C., the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. Petitioner is an inmate at a federal institution serving time on a federal sentence. The Petition is subject to summary dismissal.
DISCUSSION
Under established local procedure in this judicial district, a careful review has been made of the pro se pleadings. The review has been conducted in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992); Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir. 1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The Petitioner is a pro se litigant, and thus his pleadings are accorded liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v. Beto, 405 U.S. 319 (1972). Even under this less stringent standard, the petition is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Department of Social Services, 901 F.2d 387, 390-91 (4th Cir. 1990).
Furthermore, this court is charged with screening Petitioner's lawsuit to determine if “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4 of Rules Governing Section 2254 Cases in the United States District Courts. Following the required initial review, it is recommended that the Petition should be summarily dismissed.
The Rules Governing Section 2254 Cases are also applicable to Section 2241 cases. See Rule 1(b) of Rules Governing Section 2254 Cases.
Petitioner asserts the Petition concerns earned time credits per the First Step Act, 18 U.S.C § 3632(d)(4)(A). (ECF No. 1 at 2). Petitioner asserts he filed a BP-9 and BP-10 and that further steps of exhaustion are futile. (ECF No. 1 at 6). Petitioner argues the BOP has failed to apply his earned time credits for the “Evidence-Based Recidivism reduction Programming” under the First Step Act, 18 U.S.C. § 3632(d)(4)(A). (ECF No. 1 at 8). Petitioner argues he should be granted 365 days. (ECF No. 1 at 9).
This action is subject to dismissal as it is premature. See Toussaint v. Knight, No. 6:21-cv-764-HMH-KFM, 2021 WL 2635887, at *4 (D.S.C. June 4, 2021), report and recommendation adopted, 2021 WL 2635479 (D.S.C. June 25, 2021)(collecting cases). In Wright v. Warden of Edgefield FCI, No. 8:21-CV-0388-JD-JDA, 2021 WL 2270011, at *4 (D.S.C. Mar. 31, 2021), report and recommendation adopted, 2021 WL 2269960 (D.S.C. June 2, 2021), the court noted: “Even if Plaintiff had exhausted his administrative remedies, this case would be subject to dismissal on an additional basis. Numerous courts have dismissed petitions like the present one as premature because § 3621(h)(4) of the FSA provides a two-year deadline to implement the program at issue, and that deadline has not yet expired. As such, the BOP is under no obligation to act before the deadline has passed in January 2022. See, e.g., Kennedy-Robey v. FCI Pekin, No. 20-cv-1371, 2021 WL 797516, at *4 (C.D. Ill. Mar. 2, 2021); Hand v. Barr, No. 1:20-cv-00348-SAB-HC, 2021 WL 392445, at *5 (E.D. Cal. Feb. 4, 2021); Llewlyn v. Johns, No. 5:20-cv-77, 2021 WL 535863, at *2 (S.D. Ga. Jan. 5, 2021), report and recommendation adopted by 2021 WL 307289 (S.D. Ga. Jan. 29, 2021);.Llufrio v. Johns, No. 5:15-cv-122, 2020 WL 5248556, at *2 (S.D. Ga. Aug. 13, 2020),report and recommendation adopted by 2020 WL 5245133 (S.D. Ga. Sept. 2, 2020); James v. Johns, No. 5:19-cv-117, 2020 WL 5047158, at *2 (S.D. Ga. Aug. 4, 2020); Bowling v. Hudgins, No. 5:19-cv-285, 2020 WL 1918248, at *4 (N.D. W.Va. Mar. 16, 2020), report and recommendation adopted by 2020 WL 1917490 (N.D. W.Va. Apr. 20, 2020).”
Thus, Plaintiff's action is not yet ripe as BOP is not statutorily obligated to act yet.
RECOMMENDATION
Accordingly, it is recommended that the Petition in this case be dismissed without prejudice and without requiring the respondent to file a return.
IT IS SO ORDERED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).