Opinion
CIV-21-479-G
06-23-2021
BRIAN EDWARD MAHONEY, Petitioner, v. WARDEN DANIEL MARTIN, Respondent.
REPORT AND RECOMMENDATION
SUZANE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner, appearing pro se, initiated this action under 28 U.S.C. § 2241 in the United States District Court for the District of Rhode Island. Doc. 1.Petitioner was eventually transferred to the Grady County Law Enforcement Center in Chickasha, Oklahoma, and this action was transferred to the United States District Court for the Western District of Oklahoma on May 12, 2021, Doc. 19. Petitioner, though, had been transferred from Oklahoma on January 29, 2021, and is now being held in Butner, North Carolina. Doc. 24, at 1.
Although Petitioner indicates he is represented by counsel, Doc. 24, at 4, counsel has not entered an appearance in this matter.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
See CM/ECF second docket entry for Case No. CIV-21-479-G dated May 11, 2021, “TEXT ORDER.”
United States District Judge Charles B. Goodwin referred the matter to the undersigned under 28 U.S.C. § 636(b)(1)(B), (3). Doc. 21.
“A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.” Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000) (citation omitted). Petitioner is not confined in this district. Rather, Petitioner is incarcerated at the Federal Medical Center in Butner, North Carolina. See Doc. 24, at 1, Ex. 1 (envelope). Butner lies in the Eastern District of North Carolina. 28 U.S.C. § 113(a). Thus, this Court lacks jurisdiction over his petition.
Still, “[j]urisdictional defects that arise when a suit is filed in the wrong federal district may be cured by transfer under the federal transfer statute, 28 U.S.C. § 1631, which requires a court to transfer such an action if the transfer is in the interest of justice.” Haugh, 210 F.3d at 1150 (citation and internal quotation marks omitted). It is within this court's discretion to determine whether to transfer an action or instead to dismiss the action without prejudice. See Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006).
Review of the petition reveals Petitioner is challenging his ongoing civil commitment after the dismissal of the criminal charges against him. Doc. 1, at 4-5. The undersigned recommends that the interest of justice warrants the transfer of this matter to the United States District Court for the Eastern District of North Carolina.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before July 7, 2021. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
Petitioner has neither paid the required $5.00 filing fee nor applied for leave to proceed in forma pauperis. 28 U.S.C. §§ 1914(a), 1915(a). Adoption of this Report and Recommendation will moot the Court's orders to cure this deficiency, Docs. 22, 25.
Petitioner has alerted the Court that he expects to be transferred to an as-yet unknown facility. Doc. 24, at 4. The Clerk of Court is therefore instructed to send a copy of this order to Petitioner's attorney, see id.:
Attorney Brandon Sample
P.O. Box 250
Rutland, Vermont 05702
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.