Opinion
Case No. CIV-06-565-C.
August 24, 2006
REPORT AND RECOMMENDATION
After obtaining a federal conviction, Mr. Carlos Romero seeks habeas relief under the 1940 version of 28 U.S.C. § 451. Habeas Corpus Petition Pursuant to 28 USC § 451, ET SEQ (1940) at pp. 1-2 (May 22, 2006) ("Petition"). According to Mr. Romero, the 1940 law remains in effect because Sections 2241 and 2255 were never validly enacted. Id. at pp. 1-2, 6-7, 20-21, 33-40, 61. Four respondents are named, but three are improper parties and the fourth is not subject to this Court's jurisdiction. As a result, the action should be transferred to the Eastern District of Texas.
Petition at pp. 1, 5.
Mr. Romero was convicted on federal charges and is housed at a federal prison in Beaumont, Texas. See Petition at pp. 5, 11, 63. Seeking habeas relief, the Petitioner has named four respondents:
• the Attorney General of the United States,
• the United States Bureau of Prisons,
• the Department of Justice, and
• the warden of FCI Beaumont Medium.Id. at pp. 1, 5.
The only proper respondent is the custodian, regardless of whether the governing habeas statute is the current version or the one adopted in 1940. See, e.g., 28 U.S.C. § 455 (1946) ("The writ [of habeas corpus] shall be directed to the person in whose custody the party is detained."); 28 U.S.C. § 2243 (2000) ("The writ [of habeas corpus] . . . shall be directed to the person having custody of the person detained."). The custodian is the warden of FCI Beaumont Medium, and he is properly designated as a party. See Rumsfeld v. Padilla, 542 U.S. 426, 435-36 (2004) (stating that in "`core'" habeas challenges, "the proper respondent is the warden of the facility where the prisoner is being held" (citations omitted)). But the warden is not subject to this Court's jurisdiction. See Griggs v. United States, 79 Fed. Appx. 359, 363 (10th Cir. Oct. 17, 2003) (Western District of Oklahoma lacked personal jurisdiction over the warden of a federal prison in Texas).
Mr. Romero appears to recognize the territorial limits of this Court's jurisdiction, as he states in the petition: "Pursuant to 28 U.S.C. § 451, et seq., a petition for Writ of Habeas Corpus shall be filed into the district court of the jurisdiction wherein the prisoner is physically located." Petition at p. 4.
The Attorney General, Bureau of Prisons, and Justice Department are not considered Mr. Romero's custodian, and they are improperly designated as respondents. See Blango v. Thornburgh, 942 F.2d 1487, 1491-92 (10th Cir. 1991) (per curiam) (holding that the United States Attorney General and director of the federal Bureau of Prisons were not proper parties in a federal inmate's habeas action).
Because the respondents are either improperly designated or beyond the Court's jurisdiction, Chief Judge Cauthron should either dismiss or transfer the action. See 28 U.S.C. §§ 1406(a), 1631 (2000). In lieu of dismissal, the Petitioner seeks transfer to the appropriate court. Petition at pp. 4-5 ("If the sentencing court . . . asserts that it has no jurisdiction to hear this Petition, Petitioner requests that his habeas petition be immediately transferred to the district court where Petitioner is physically imprisoned. . . ." (emphasis in original)). The Court should grant Mr. Romero's request and transfer the action to the Eastern District of Texas. See 28 U.S.C. § 1631 (2000) (authorizing transfer to cure a jurisdictional defect).
The Court may judicially notice that Beaumont, Texas lies in the Eastern District of Texas. See 28 U.S.C. § 124(c)(2) (2000) (the Eastern District of Texas, Beaumont Division, is located in Beaumont); see also United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980) ("[g]eography has long been peculiarly susceptible to judicial notice for the obvious reason that geographic locations are facts which are not generally controversial and thus it is within the general definition contained in Fed.R.Evid. 201(b)").
Those courts to address the Petitioner's theory have upheld the validity of 28 U.S.C. §§ 2241 and 2255, holding that the 1940 version of Section 451 was no longer in effect. See Derleth v. United States, 2006 WL 1804618, passim (S.D. Tex. June 27, 2006) (unpublished op.); United States v. Long, 2006 WL 1805962, Westlaw op. at 1 (D. Ore. June 23, 2006) (unpublished op.); Jones v. Unknown Warden, 2006 WL 389833 (E.D. Mo. Feb. 17, 2006) (unpublished op.). However, the Eastern District of Texas has apparently not addressed the issue.
Any party may object to this report and recommendation. See 28 U.S.C. § 636(b)(1) (2000). Such objections must be filed with the Court Clerk for the United States District Court. See Haney v. Addison, 175 F.3d 1217, 1219-20 (10th Cir. 1999). The deadline for objections is September 13, 2006. See W.D. Okla. LCvR 72.1(a). The failure to timely object to this report and recommendation would waive the parties' right to appellate review of the suggested ruling. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
The referral is terminated.