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DIOGENES v. MALCOLM

January 17, 1985

VICTOR PAUL DIOGENES, Petitioner
v.
BENJAMIN MALCOLM, Regional Commissioner, NorthEast Regional Office of the United States Parole Commission, NORTHEAST REGIONAL OFFICE OF THE UNITED STATES PAROLE COMMISSION, its Agents, Employees and Successor of interest, Respondents



The opinion of the court was delivered by: LUONGO

 LUONGO, Ch.J.

 In this lawsuit, Victor Paul Diogenes challenges a decision of the Northeast Regional Office of the United States Parole Commission that denied his request for administrative reopening of his parole determination. Diogenes, an inmate at the Federal Correctional Institution at Ray Brook, New York, claims that the Commission improperly applied parole guidelines in effect at the time of his hearing rather than those in effect at the time of his offense. On November 26, 1984, Magistrate Richard A. Powers III filed a Report and Recommendation (attached hereto as Appendix A) that concluded (1) that this court lacks jurisdiction over petitioner's habeas corpus claim, (2) that the case should be transferred to the United States District Court for the Northern District of New York, (3) that petitioner's request for entry of default should be denied, and (4) that petitioner's motion to excise his claim for habeas corpus should be denied. On December 10, 1984, petitioner filed objections to the magistrate's report and an accompanying memorandum of law. Although the objections were filed late, I have reviewed this case de novo. For the reasons that follow, I will adopt the magistrate's recommendation.

 Primarily, I am satisfied that this court lacks jurisdiction over petitioner's habeas corpus claim. The proper defendant in an inmate's habeas corpus petition is the warden at the place of incarceration, and a court entertaining such a petition must have personal jurisdiction over the custodian. Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir. 1976). Thus, the proper defendant for petitioner's habeas corpus claim is the warden of Ray Brook, and jurisdiction will be proper in the Northern District of New York.

 Petitioner argues that jurisdiction is proper in the Eastern District of Pennsylvania because he has styled this lawsuit as an action for mandamus against members of the Northeast Regional Office of the Parole Commission who have their offices within this district. This argument is not convincing. I agree with the magistrate's conclusion that this case does not present sufficient grounds for exercise of the extraordinary writ of mandamus. Even aside from the Commission's discretion in determining parole, the availability of an alternative remedy -- a writ of habeas corpus in the district of his incarceration -- renders resort to mandamus inappropriate. See Kerr v. United States District Court, 426 U.S. 394, 403, 48 L. Ed. 2d 725, 96 S. Ct. 2119 (1976); Darby v. Schweiker, 555 F. Supp. 285, 287 (E.D. Pa. 1983).

 I am also in agreement with the magistrate's conclusion that the case should be transferred to the Northern District of New York. Section 1406(a) of Title 28 grants district courts discretion to transfer cases to the district in which venue would be proper, even in the absence of personal jurisdiction in the transferor court. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962). Such a transfer is particularly appropriate in this, a case in which it has been asserted that petitioner's choice of forum was motivated by this Circuit's precedent favorable to petitioner: upon transfer under § 1406(a) the transferee court will apply the substantive law of its own Circuit. See 1 J. Moore, et al., Moore's Federal Practice, para. 0.145[4.-5] (1984).

 Finally, I agree with the magistrate's recommendation that petitioner's motion to excise his habeas corpus claim should be denied. It is clear from the substance of the petition that the relief sought by Diogenes is reduction of the severity level assigned to his offense -- and thus a greater likelihood of early parole. Petitioner's claim, therefore, is one that attacks the duration of his sentence. Indeed, were this not so, petitioner would likely be without standing to complain about the Parole Commission's failure to utilize appropriate guidelines. *fn1"

 ORDER

 This 17th day of January, 1985, it is ORDERED that:

 1. Petitioner's objections to the Magistrate's Report and Recommendation are OVERRULED;

 2. The Magistrate's Report and Recommendation are APPROVED;

 3. Petitioner's motion to amend the petition to excise his habeas ...


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