Hanna v. Pettiford

Full title: LIONEL HANNA v. MICHAEL PETTIFORD

Court: United States District Court, N.D. Florida, Panama City Division

Date published: Jul 17, 2006

5:06cv65/MCR/MD (N.D. Fla. Jul. 17, 2006)

Opinion

5:06cv65/MCR/MD.

July 17, 2006

REPORT AND RECOMMENDATION

MILES DAVIS, Magistrate Judge

This matter is before the court upon a pleading construed as a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 (doc. 1). The government has filed a response (doc. 11) and the petitioner has filed a reply (doc. 12).

Petitioner Lionel Hanna is a federal prisoner currently housed at the Federal Correctional Institution in Marianna, Florida. This case was originally filed as a petition for writ of mandamus and/or petition for writ of prohibition in the United States District Court for the Southern District of Mississippi, Western Division, when petitioner was incarcerated at the Federal Correctional Institution in Yazoo City, Mississippi. (Doc. 1). Petitioner sought an award of good time credit for which he was no longer eligible when he resigned from the GED classes given at the institution without successfully completing his GED. The district court in Mississippi denied the motion for writ of mandamus, and construed the petition as one for habeas relief pursuant to 28 U.S.C. § 2241. (Doc. 4). After being directed to respond (doc. 7), the warden Michael Pettiford filed an answer. (Doc. 11). Petitioner filed a response (doc. 12), a notice of change of address (doc. 14) and finally a motion for judgment on the pleading and/or request for an evidentiary hearing on July 10, 2005. (Doc. 15).¹ In a memorandum opinion and order dated March 6, 2006, the then-presiding district judge found that although the petition was without merit, that court was without jurisdiction to consider the petition in light of petitioner's transfer to the Northern District of Florida. (Doc. 17, citing Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004)).

1 The response to this motion, doc. 16, was not referred with the pleadings from the Southern District of Mississippi.

It is the opinion of this court that the case was improvidently transferred. While Padilla clearly provides that "for habeas petitions challenging present physical confinement, jurisdiction lies in only one district, the district of confinement." 124 S.Ct. at 2722, the Court did not have before it a situation such as this, where the petitioner was transferred after having filed a habeas petition with the proper court.² The Padilla Court nonetheless acknowledged the limited proposition enunciated in Ex parte Endo, 323 U.S. 283, 306, 65 S.Ct. 208, 89 L.Ed. 243 (1944), that "when the Government moves a habeas petitioner after [he] properly files a petition naming [his] immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release." 124 S.Ct. at 2721.³ The dissent also noted, citing Endo, that "if jurisdiction was proper when the petition was filed, it cannot be defeated by a later transfer of the prisoner to another district." 124 S.Ct. at 2731.

2 In Padilla, the habeas petition was filed two days after petitioner's transfer to another jurisdiction.

3 The petitioner in this case had initially named the Bureau of Prisons and the Department of Justice as respondents, but they were dism issed by the district court. (Doc. 7).

Thus, Padilla does not appear to alter the longstanding rule that jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change. See, e.g., Santillanes v. United States Parole Commission, 754 F.2d 887, 888 (10^th Cir. 1985) ; Mujahid v. Daniels, 413 F.3d 991, 994 (9^th Cir. 2005) (citing Padilla); Prevatte v. Gunja, 167 Fed.Appx. 39, 42 (10^th Cir. 2006); Francis v. Rison, 894 F.2d 353, 354 (9^th Cir. 1990); Lee v. Wetzel, 244 F.3d 370, 375 n. 5 (5^th Cir. 2001); Sweat v. White, 829 F.2d 1121, 1121 (4^th Cir. 1987) (Table, text in WESTLAW). Were the rule otherwise, a petitioner's case could potentially be delayed in perpetuity by repeated transfers. Such a result surely was not intended.

Finally, the court notes that the transferring court cited 28 U.S.C. §§ 1404(a) and 1406(a) as a basis for the transfer. Each of these statutes provides for transfers to any district or division in which the case "[could] have been brought." The case at bar clearly could not have been brought in this district or division at the time it was filed. Therefore, the petition should be transferred back to the court in which it was initially filed.⁴ Based on the foregoing, it is respectfully RECOMMENDED:

4 After review of the parties' submissions, this court concurs with the transferring court's assessment that the petition is without merit and is due to be denied for the reasons stated in the government's response. (See doc. 11, doc. 17 at 1). The transferring court, believing it was without jurisdiction to enter judgm ent, transferred it to this court in lieu of dismissal. Therefore, if the district judge does not find transfer back to Southern District of Mississippi to be appropriate, the petition should be denied on the merits. (Doc. 11).

Petitioner's motion for judgment on the pleading and/or request for a hearing (doc. 15) be DENIED; and

The petition for writ of habeas corpus (doc. 1) be transferred back to the United States District Court for the Southern District of Mississippi, Western Division.