Jones v. Rivers ( 2022 )

Case: 21-60211 Document: 00516389820 Page: 1 Date Filed: 07/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 11, 2022
No. 21-60211 Lyle W. Cayce
Summary Calendar Clerk
Derrick L. Jones,
Petitioner—Appellant,
versus
Warden Christopher Rivers,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-cv-858
Before King, Costa, and Ho, Circuit Judges.
Per Curiam:*
Derrick L. Jones appeals the judgment of the district court dismissing
his petition for writ of habeas corpus with prejudice. We affirm.
Jones is currently incarcerated in the custody of the Bureau of Prisons
serving a 120-month term of imprisonment for possession of a firearm and
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60211 Document: 00516389820 Page: 2 Date Filed: 07/11/2022
No. 21-60211
ammunition after having served a state sentence related to the same
underlying incident. Without first proceeding through the Administrative
Remedy Program, he filed a petition for writ of habeas corpus alleging that
his federal sentence is being unlawfully executed because the Bureau of
Prisons has not applied a nunc pro tunc designation to his prison term. The
district court, acknowledging that an inmate must first exhaust his
administrative remedies prior to seeking such relief from the court,
nevertheless reached the merits of his complaint. It concluded that Jones
could not show an error by the Bureau of Prisons for failing to apply a nunc
pro tunc designation because the record as submitted by Jones demonstrated
that the sentencing court intended his “federal sentence run consecutive to
the state term.”
On appeal, Jones does not challenge the district court’s merits
conclusion, but instead argues: (1) the district court erred by dismissing his
petition with prejudice because he had failed to exhaust his administrative
remedies; and (2) the district court denied him procedural due process
because he was not given sufficient opportunity to oppose the magistrate
judge’s Report and Recommendations.1 We address these arguments in turn.
First, while true that the ordinary course for a district court is to
dismiss a case without prejudice when a habeas petitioner fails to first exhaust
his administrative remedies, it is not required. Woodford v. Ngo, 548 U.S. 81,
101 (2006) (“[E]ven if dismissals under § 1997e(c)(2) typically occur when
the opportunity to pursue administrative remedies has passed, § 1997e(c)(2)
1
Jones also contends the district court inappropriately denied his motion for
summary judgment, appointment of counsel, and motion for evidentiary hearing. Because
he does not explain why or how the district court erred in denying these motions, we do not
address the contentions further. See Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008)
(“Although pro se briefs are afforded liberal construction, even pro se litigants must brief
arguments in order to preserve them.” (citation omitted)).
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Case: 21-60211 Document: 00516389820 Page: 3 Date Filed: 07/11/2022
No. 21-60211
still serves a useful function by making it clear that the PLRA exhaustion
requirement is not jurisdictional, and thus allowing a district court to dismiss
plainly meritless claims without first addressing what may be a much more
complex question, namely, whether the prisoner did in fact properly exhaust
available administrative remedies.”). Thus, the district court was permitted
to reach the merits.
Second, Jones has failed to show a denial of due process in his late
receipt of the magistrate judge’s Report and Recommendations. When a
petitioner does not receive a copy of a magistrate judge’s report, and thus
fails to file objections, we ask whether the petitioner was prejudiced. See
Ferguson v. La. Dept. of Pub. Safety & Corr. Bd. of Parole, 218 F. App’x 355,
356 (5th Cir. 2007) (citing McGill v. Goff, 17 F.3d 729, 731 (5th Cir. 1994),
overruled on other grounds, Kansa Reinsurance Corp. v. Cong. Mort. Co., 20 F.3d
1362, 1373–74 (5th Cir. 1994)). Here, upon discovery that Jones had not
received the Report and Recommendations, he was mailed another copy, he
received that copy and filed his objections, and the district court considered
and rejected those objections. Therefore, Jones has not shown how he was
prejudiced by the initial late delivery or initial order of the district court that
found he did not raise objections.
For the foregoing reasons, the judgment is AFFIRMED.
3