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Marcano v. Mosley

United States District Court, M.D. Pennsylvania

February 14, 2018

Kenneth Marcano, Petitioner,
v.
Bonita Mosley, Warden, Respondent.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin, United States Magistrate Judge.

         This matter is before the Court on Petitioner's motion to transfer. [Doc. 23.] Petitioner, proceeding pro se, is a federal prisoner seeking relief pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.

         Petitioner filed this Petition for writ of habeas corpus on July 31, 2017.[1] [Doc. 1.] At the time he filed the Petition, Petitioner was incarcerated at the federal correctional institution in Edgefield, South Carolina (?FCI Edgefield”). [Doc. 1 at 1-2.] On October 18, 2017, Respondent filed a motion to dismiss or, in the alternative, for summary judgment. [Doc. 17.] On October 19, 2017, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 18.] On October 23, 2017, Petitioner's notice of change of address was entered on the docket. [Doc. 20.] In the notice, Petitioner notified the Court that he had been transferred to the medium security federal correctional institution in White Deer, Pennsylvania (?FCI Allenwood Medium”), and that this facility would be his permanent location. [Id.] On November 20, 2017, Petitioner's motion to transfer was entered on the docket. [Doc. 23.] On December 21, 2017, Respondent filed a response to the motion to transfer. [Doc. 29.]

         In his motion to transfer, Petitioner seeks an Order transferring this matter to the proper territorial jurisdiction, asserting that because he is currently housed at FCI Allenwood Medium, this Court no longer has jurisdiction over the matter. [Doc. 23.] Respondent neither objects nor consents to Petitioner's motion to transfer, recognizing a split within the District of South Carolina regarding whether the Court retains jurisdiction over habeas corpus petitions after a prisoner is transferred out of the district. [Doc. 29.]

         District courts are authorized to grant writs of habeas corpus “within their respective jurisdictions, ” 28 U.S.C. § 2241(a), and such writs “shall be directed to the person having custody of the person detained, ” 28 U.S.C. § 2243. Therefore, in a traditional prisoner habeas action, “there is generally only one proper respondent”-the “person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge.” Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004) (emphasis in original). Similarly, because “the court issuing the writ [must] have jurisdiction over the custodian, ” generally in “habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement.” Id. at 442-43 (citation omitted). As Respondent noted in the response, the decisions in the District of South Carolina have split on the issue of whether the Court retains jurisdiction over habeas corpus petitions after a prisoner is transferred out of the district. Compare Plaskett v. Cruz, ___ F.Supp.3d ___, 2017 WL 4773342 (D.S.C. 2017) (holding that after a petitioner's release from federal custody in South Carolina, his supervised release agent was the proper respondent in a § 2241 petition, and because the agent was in the Virgin Islands, the court lacked habeas jurisdiction to entertain the petition), and Smith v. Owen, No. 0:09-2310-JFA-PJG, 2011 WL 743212 (D.S.C. Feb. 24, 2011) (transferring a § 2241 petition and holding that the court was divested of jurisdiction over the petition after the petitioner was transferred out of the district), with Warren v. United States, No. 3:10-1245-MBS-JRM, 2011 WL 4435655 (D.S.C. Sept. 23, 2011) (holding that once a district court acquires jurisdiction over a petition, a transfer of the prisoner to a prison in a different district does not deprive the court of jurisdiction to consider the merits of the petition).

         Here, the Court need not decide whether it retains jurisdiction following Petitioner's transfer to FCI Allenwood Medium because Petitioner is seeking the transfer and Respondent does not oppose the transfer. Moreover, neither party contends the Middle District of Pennsylvania is without jurisdiction over the Petition. Notably, in most of the decisions addressing this issue in the District of South Carolina, the petitioner has challenged the transfer; however, in this case, Petitioner seeks the transfer. Accordingly, the undersigned recommends that Petitioner's motion to transfer be granted.

         Wherefore, based upon the foregoing, the Court recommends that Petitioner's motion to transfer be GRANTED.

         IT IS SO RECOMMENDED.

---------

Notes:

[1] A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on July 31, 2017. [Doc. 1-4 at 2 (envelope ...


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