United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE
September 1, 2016, Frederick Hamilton Banks
("Banks" or "petitioner"), a federal
pretrial detainee proceeding pro se, filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2241 [D.E. 1].
He also filed a motion for leave to proceed in forma pauperis
[D.E. 2] and a motion to return PLRA payments to his inmate
account [D.E. 6].
to 18 U.S.C. § 4241, Banks is detained at the Federal
Medical Center in Burner, North Carolina. See In re
Banks. No. 16-2453, 2016 WL 6518527, at *1 (3d Cir. Nov.
3, 2016) (per curiam) (unpublished). A grand jury in the
United States District Court for the Western District of
Pennsylvania charged Banks with interstate stalking in
violation of 18 U.S.C. § 2261A(2), wire fraud in
violation of 18 U.S.C. § 1343, aggravated identity theft
in violation of 18 U.S.C. § 1028A(a)(1), and making
false statements in violation of 18 U.S.C. § 1001(a)(3).
asks the court to vacate his commitment order and argues that
his evaluation process has gone oh longer than statutorily
permitted and that the delay is due to racial animus.
See [D.E. 1]. The court referred Banks's
petition to Magistrate Judge Numbers for initial review under
28 U.S.C. § 2243. On July 10, 2017, Judge Numbers issued
a Memorandum and Recommendation ("M&R")
recommending dismissing Banks's petition for failure to
exhaust the remedies available to him in the Western District
of Pennsylvania. See M&R [D.E. 8] 1. Judge Numbers also
granted Banks's in forma pauperis motion and denied, as
moot, Banks's motion to have payments returned to his
inmate account. Id. at 6. On July 20, 2017, Banks
objected to the M&R [D.E. 9, 10].
Federal Magistrates Act requires a district court to make a
de novo determination of those portions of the magistrate
judge's report or specified proposed findings or
recommendations to which objection is made." Diamond
v. Colonial Life & Accident Ins. Co.. 416 F.3d 310,
315 (4th Cir. 2005) (alteration, emphasis, and quotation
omitted); see 28 U.S.C. § 636(b). Absent a timely
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. 416 F.3d at 315
court has reviewed the M&R, the record, and Banks's
objections. As for those portions of the M&R to which
Banks made no objection, the court concludes that there is no
clear error on the face of the record.
first set of objections, Banks does not address the substance
of the M&R's findings or recommendation, but rather
alleges constitutional violations concerning his criminal
case. See [D.E. 9]. Banks's objections to his
criminal case do not concern the analysis contained in the
M&R, but instead raise claims not before this court. See
Fed.R.Civ.P. 72(b)(2); Orpiano v. Johnson. 687 F.2d
44, 47 (4th Cir. 1982). Thus, the court overrules these
Banks filed his petition, Banks "had not exhausted
available remedies in the trial and appellate courts in his
criminal case, and has not alleged any exceptional
circumstances sufficient to excuse this failure."
M&R at 5. A habeas corpus application allows a petitioner
to challenge the fact, length, or conditions of custody and
seek immediate release. See e.g.. Preiser v.
Rodriguez. 41.1 U.S. 475, 484-85 (1973). A petitioner,
however, must exhaust other available remedies before he is
eligible for habeas corpus relief under § 2241.
See, e.g.. United States v.
Addonizio. 442 U.S. 178, 184 n.10 (1979); Jones v.
Perkins. 245 U.S. 390, 391 (1918). This exhaustion
requirement also applies to individuals who are subject to
civil commitment. See Timms v. Johns. 627 F.3d 525,
533 (4th Cir. 2010). Banks's petition and the docket in
his criminal case demonstrate that, when he filed his
petition, he had not exhausted available remedies in the
trial and appellate courts in his criminal case and has not
alleged any exceptional circumstances sufficient to excuse
this failure. Thus, Judge Numbers correctly recommended
dismissing Banks's petition.
also objects to Judge Numbers's factual finding that
"[q]uestions still persist regarding whether Banks will
ever be competent to stand trial." Obj. [D.E. 10]
(quotation omitted); see M&R at 4. This factual finding
is correct given that Banks's competency proceedings are
ongoing. See Order, United States v. Banks. No.
2:15-CR-168-MRH-1, [D.E. 356] (W.D. Pa. May 24, 2017)
(ordering supplemental briefing regarding Banks's
competency); Docket Report at
(last checked Aug. 10, 2017). In any event, the factual
finding is not necessary for, and does not affect, Judge
Numbers's conclusion that because Banks has failed to
exhaust his remedies in the Western District of Pennsylvania,
he is not entitled to habeas relief in this court. Thus, this
objection is overruled.
the court ADOPTS the conclusion in the M&R [D.E. 8] that
Banks has failed to exhaust his remedies in the Western
District of Pennsylvania, OVERRULES Banks's objections to
the M&R [D.E. 9, 10], and DISMISSES the petition [D.E.
1]. The court DENIES a certificate of appealability. See 28
U.S.C. § 2253(c); Miller-El v. Cockrell. 537