Opinion
Case No. 19-cv-291-PB
04-03-2019
Chad Austin v. FCI Cumberland, Warden
cc: Chad Austin, pro se
REPORT AND RECOMMENDATION
Chad Austin, an inmate at the Cumberland Federal Correctional Institution in Maryland, has filed a motion to appoint counsel (Doc. No. 1), which the clerk's office docketed as a petition seeking relief under 28 U.S.C. § 2241. Austin has also filed a motion entitled, "Motion to Set the Record Straight" (Doc. No. 3), explaining that he intended, in this action, to seek relief under 28 U.S.C. § 2255.
Because Austin has previously unsuccessfully litigated a motion under 28 U.S.C. § 2255, this court would not have jurisdiction to hear a second § 2255 motion, unless the First Circuit granted Austin permission to file a second § 2255 motion here, see generally 28 U.S.C. §§ 2244, 2255(h). The First Circuit has not done so. This court is also not the appropriate forum for Austin to litigate claims under 28 U.S.C. § 2241, as this court does not have jurisdiction over Austin's custodian.
A transfer of this matter to the First Circuit, pursuant to 28 U.S.C. § 1631, would allow that court to consider whether Austin may be granted leave to file a successive § 2255 motion here. Such a transfer is consistent with the interests of justice, as Austin avers he has new evidence that warrants further consideration under § 2255. Accordingly, the magistrate judge recommends that the district judge:
1. Deny the pending motions without prejudice (Doc. Nos. 1, 3);
2. Recharacterize this case as a successive § 2255 motion; and
3. Transfer this matter to the First Circuit, to allow that court to consider whether Austin may be granted leave to file a second § 2255 motion in this court.
Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Failure to file objections within the specified time waives the right to appeal the district court's order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
/s/_________
Andrea K. Johnstone
United States Magistrate Judge April 3, 2019 cc: Chad Austin, pro se