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McCullough v. Bureau of Prisons

United States District Court, D. South Carolina

April 4, 2019

Lawrence McCullough, Jr., Petitioner,
v.
Bureau of Prisons, Respondent.

          REPORT AND RECOMMENDATION

          KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE

         Lawrence McCullough, Jr., (“Petitioner”), proceeding pro se, is incarcerated at the Federal Correctional Institution Williamsburg in Salters, South Carolina, a facility of the federal Bureau of Prisons (“BOP”). He filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions and submit findings and recommendations to the district judge. For the reasons that follow, the undersigned recommends the district judge dismiss the Petition in this case without requiring Respondent to file an answer.

         I. Factual and Procedural Background

         Petitioner argues the BOP's delayed implementation of the First Step Act's[1] good time credits “fix” violates due process of law and the rules of statutory construction. ECF No. 11 at 6. Petitioner contends that under the First Step Act an inmate showing exemplary compliance with institutional rules receives 54 days of good time, instead of the previously awarded 47 days. Id. at 7. Petitioner argues the BOP has continued to only provide 47 days of credit, claiming the BOP has “embarked on a play of words of ambiguous language” to “delay or prevent [it] from having to implement such change in law (mandate)[]” until it develops an unrelated risk and needs assessment system. Id. Petitioner argues the congressional mandate involving the 54 days does not require the BOP to create a particular system before the mandate is applied. Id. Petitioner seeks an order compelling the BOP to comply with the congressional mandate and immediately implement the 54 days into the calculation of his sentence. Id. at 8.

         II. Discussion

         A. Standard of Review

         Under established local procedure in this judicial district, a careful review has been made of this Petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, [2] the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         Petitioner is required to exhaust his administrative remedies within the BOP before submitting a § 2241 Petition in this case. Although § 2241 does not contain a statutory exhaustion requirement, courts consistently require prisoners to exhaust their administrative remedies prior to seeking habeas review under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 490-91 (1973) (requiring exhaustion in 28 U.S.C. § 2241 matter); McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir. 2004) (“Federal prisoners must exhaust their administrative remedies prior to filing § 2241 petitions.”). This requirement of exhaustion allows prison officials to develop a factual record and “an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007).

         Petitioner admits he has not pursued any of his administrative remedies. See ECF No. 11 at 2. Accordingly, Petitioner's § 2241 Petition is subject to summary dismissal for lack of exhaustion.

         III. Conclusion and Recommendation

         For the foregoing reasons, the undersigned recommends the district judge dismiss the Petition in the above-captioned matter without prejudice.

         IT IS ...


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