The opinion of the court was delivered by: Judge McClure
Jose Rosa was sentenced to serve a five to ten-year term in a Pennsylvania state correctional facility after shooting a police officer in the back. While serving his state sentence, Rosa was removed from state custody, prosecuted in the United States District Court for the Eastern District of Pennsylvania, and found guilty of, inter alia, conspiracy to distribute cocaine, possession with intent to distribute cocaine, and federal income tax evasion. Rosa was sentenced to an aggregate term of thirty years in federal prison.
On November 17, 2005, Rosa filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Rosa challenges the Bureau of Prisons ("BOP") calculation of his sentence, arguing that the BOP improperly computed his sentence by not running his thirty-year term of imprisonment concurrent with his state sentence.
The matter was initially referred to United States Magistrate Judge J. Andrew Smyser.
On February 16, 2006, Magistrate Judge Smyser issued his eight-page report and recommendation, recommending that the petition be dismissed without prejudice due to Rosa's failure to exhaust administrative remedies. (Rec. Doc. No. 17.) On or about March 3, 2006, Rosa filed a pleading captioned "Rule 59(e) Motion To Alter Or Amend Judgment." (Rec. Doc. No. 18.) By order dated March 7, 2006, we construed the filing as an objection to the report and recommendation. (Rec. Doc. No. 19.)
For the reasons set forth below, we will adopt in full the report and recommendation of Magistrate Judge Smyser, and dismiss Rosa's petition without prejudice.
A district court reviews de novo those portions of a magistrate judge's report and recommendation to which a party objects. L.R. 72.3. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
We construe Rosa's pro se filings liberally. See, e.g., Haines v. Kerner, 404 U.S. 519 (1972).
28 U.S.C. § 2241 empowers this court to grant a writ of habeas corpus. "Although there is no statutory exhaustion requirement attached to § 2241, [the United States Court of Appeals for the Third Circuit has] consistently applied an exhaustion requirement to claims brought under § 2241." Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000) (citing Arias v. United States Parole Comm'n, 648 F.2d 196, 199 (3d Cir. 1981) (requiring federal prisoner to exhaust administrative remedies before bringing claim under § 2241)). The magistrate judge correctly noted that exhaustion is not required, however, where administrative procedures are unavailable or incompetent to provide adequate redress or where ...