Hammer v. Meachum

23 Citing cases

  1. Strachan v. Army Clemency and Parole Board

    151 F.3d 1308 (10th Cir. 1998)   Cited 14 times

    As a final matter, Mr. Strachan moves the court for relief from his loss of expected work abatement (a variation of good time credit) due to his transfer to the Federal Bureau of Prisons system in alleged violation of Fed.R.App.P. 23(a). Relief for violation of this rule, however, may only be obtained after showing the transfer resulted in prejudice to the prosecution of the pending habeas action. See Shabazz v. Carroll, 814 F.2d 1321, 1324 (9th Cir.), vacated in part on other grounds, 833 F.2d 149 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988); Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982), cert. denied, 460 U.S. 1042 (1983); Goodman v. Keohane, 663 F.2d 1044, 1047-48 (11th Cir. 1981); cf. Schultz v. United States, 373 F.2d 524, 524 (5th Cir. 1967) (involving circuit rule to same effect as Rule 23(a)). The purpose of Rule 23(a) is to prevent officials from frustrating an inmate's efforts to obtain habeas relief by physically removing him from the territorial jurisdiction of the court in which the petition is pending.

  2. Dade v. Sanders

    Civil Action No. 11-cv-00430-WJM-MJW (D. Colo. Jun. 25, 2012)   Cited 1 times
    Applying Rule 23 in a pending habeas action before the district court

    However, in order to obtain the relief Petitioner seeks, he is required to show that the "transfer resulted in prejudice to the prosecution of the pending habeas action." Strachan, 151 F.3d at 1312; see also Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982) ("While we do not condone such blatant violation of the appellate rules, we nevertheless deny petitioner's motion because he has not been prejudiced by the transfer."). The Court finds that Petitioner's security re-classification is a legitimate, non-retaliatory, independent reason for his transfer, and that Petitioner has failed to shown that his transfer has resulted in any prejudice to him.

  3. Wolfe v. Clarke

    819 F. Supp. 2d 574 (E.D. Va. 2011)   Cited 16 times
    Finding continued incarceration while habeas petition is pending "not substantial"

    Furthermore, Rule 23(a) has been applied to transfers of prisoners in state custody from one state facility to another. See, e.g., Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir.1982) (state's transfer of prisoner from one in-state facility to another while prisoner's habeas petition was pending on appeal and where state did not seek leave of federal court to transfer him first was “blatant violation of the appellate rules,” although petitioner's motion to be returned to first facility was denied because he was not “prejudiced by the transfer”). III. DISCUSSION

  4. Kirby v. Ezell

    No. CV 08-0659 JH/LFG (D.N.M. Jan. 27, 2009)

    As noted in the November 13 order, Plaintiff asserts that certain Defendants caused him to be transferred, in violation of rule 23(a) of the Federal Rules of Appellate Procedure. The Court dismissed this claim, invoking the reasoning in Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982). The transfers were not prohibited under the rule, see Hammer, 691 F.2d at 960-61, and Plaintiff's allegations indicate that the transfers did not deny him access to the courts, see id. The motion's allegations fail to present a manifest error of law, and the Court will not alter the November 13 order.

  5. Kirby v. Ezell

    No. CIV 08-0659 JH/LFG (D.N.M. Nov. 13, 2008)

    Plaintiff alleges that he was transferred several times while his appeal of a coram nobis proceeding was pending in the Court of Appeals for the Fifth Circuit. "`The rule was designed to prevent prison officials from impeding a prisoner's attempt to obtain habeas corpus relief by physically removing the prisoner from the territorial jurisdiction of the court in which a habeas petition is pending.' Accordingly, courts have held that transfers made in violation of the rule do not divest the reviewing court of its jurisdiction." Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982) (internal citations omitted). The transfers that Plaintiff complains of were made between institutions in New Mexico while his appeal was pending in the Fifth Circuit. Plaintiff therefore was not removed from the territorial jurisdiction where his coram nobis/habeas proceeding was pending, see Hammer v. Meachum, 691 F.2d 958, 960-61 (10th Cir. 1982), and his allegations indicate that the transfers did not deny him access to the courts, see id. The Court will dismiss this claim.

  6. Leners v. Attorney Gen.

    No. 24-8008 (10th Cir. Dec. 12, 2024)

    And although we do not condone prison officials' violation of Federal Rule of Appellate Procedure 23(a), Mr. Leners fails to show his transfer to a different facility prejudiced his ability to seek a COA. See Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982).

  7. Kirby v. Ezell

    381 F. App'x 816 (10th Cir. 2010)

    Rule 23(a) "was designed to prevent prison officials from impeding a prisoner's attempt to obtain habeas corpus relief by physically removing the prisoner from the territorial jurisdiction of the court in which a habeas petition is pending." Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982) (quotation and citation omitted). The appeal which Kirby had pending before the Fifth Circuit at the time of his complained of transfers did not, however, relate to a petition for a writ of habeas corpus.

  8. Shabazz v. Carroll

    814 F.2d 1321 (9th Cir. 1987)   Cited 18 times
    Declining to order transfer back, notwithstanding improper transfer, because review of habeas petition was not prejudiced by transfer

    It is not necessary to transfer Shabazz back to Arizona because review of his petition in this court is not prejudiced by his confinement in Texas. See Hammer v. Meachum, 691 F.2d 958, 961 (10th Cir. 1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983). Any new claims filed pursuant to 28 U.S.C. § 2241 in which Shabazz challenges the execution of his sentence should be filed in the district in which he is in federal custody.

  9. Ewing v. McMackin

    799 F.2d 1143 (6th Cir. 1986)   Cited 34 times
    Determining that status as a pro se litigant does not excuse the failure to raise issues in state court

    With respect to the petitions in case nos. C2-84-1903 and C2-84-1975, the failure to appeal a state court's denial of a motion for post-conviction relief constitutes a procedural default barring a federal court from reaching the issues raised in such motion absent a demonstration of the cause for and prejudice from such default. Zellers v. Duckworth, 763 F.2d 250, 252 (7th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 319, 88 L.Ed.2d 302 (1985); Jackson v. Cupp, 693 F.2d 867, 870 (9th Cir. 1982); Hammer v. Meachum, 691 F.2d 958, 960 (10th Cir. 1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983); Rodgers v. Wyrick, 621 F.2d 921, 926-27 (8th Cir. 1980); Cain v. State of Missouri, 518 F.2d 1180 (8th Cir. 1975) (applies deliberate bypass standard); United States ex rel. Savino v. Flood, 482 F. Supp. 228, 232 (E.D.N.Y. 1979).See also Matias v. Oshiro, 683 F.2d 318, 321 (9th Cir. 1982) ( Sykes applied to failure to raise issue in post-conviction motion). We have reached this conclusion in an unpublished disposition with no precedential effect, Sixth Circuit Rule 24, extending the reasoning of Payne v. Rees, 738 F.2d 118 (6th Cir. 1984), to failures to appeal denials of post-conviction relief. Boykins v. Davis, 765 F.2d 144 (6th Cir. 1985).

  10. Zellers v. Duckworth

    763 F.2d 250 (7th Cir. 1985)   Cited 17 times

    The petitioner does not argue that the failure to take an appeal, or to request timely relief under Rule PC 2 from the consequences of that failure, does not constitute a procedural default for which he must account before presenting his claims to the federal courts for review on the merits. See, e.g., Jackson v. Cupp, 693 F.2d 867 (9th Cir. 1982) (failure to appeal denial of post-conviction relief constitutes waiver); Hammer v. Meachum, 691 F.2d 958 (10th Cir. 1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983); Rodgers v. Wyrick, 621 F.2d 921 (8th Cir. 1980); United States ex rel. Savino v. Flood, 482 F. Supp. 228, 237 (E.D.N.Y. 1979). Cf. United States v. Correa-De Jesus, 708 F.2d 1283 (7th Cir.) (suggesting that failure to appeal denial of motion to vacate sentence precluded later review of grounds of motion in § 2255 proceeding), cert. denied, ___ U.S. ___, 104 S.Ct. 530, 78 L.Ed.2d 712 (1983).