Opinion
Case No. CIV-20-980-D
01-29-2021
ANDREW JOHNSTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Petitioner, a pro se federal prisoner, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, seeking "immediate release from federal custody" or a shortened "period of confinement to point where his immediate release will be imminent." (Doc. 1, at 1). United States Chief District Judge DeGiusti has referred this matter to the undersigned Magistrate Judge for proceedings consistent with 28 U.S.C. § 636(b)(1)(B). (Docs. 4, 6). After review of the Petition and the applicable law, the undersigned recommends dismissing the Petition as moot.
The court construes Plaintiff's pro se filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
I. Analysis
The § 2241 Petition does not provide details regarding Petitioner's conviction, but it refers to the fact that he is serving a 168-month sentence. (Doc. 1, at 2). Petitioner describes his alleged involvement with assisting the Drug Enforcement Agency (DEA) and an Assistant United States Attorney (AUSA) with an investigation into the criminal activities of fellow inmates. (Id. at 1). Petitioner alleges that the DEA and the AUSA made representations that he would receive a reduction in his prison sentence in exchange for his assistance. (Id. at 1-2). Petitioner filed the instant Petition, seeking to enforce this alleged agreement. (Id. at 2).
"A petition brought under 28 U.S.C. § 2241 typically attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined." Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (internal quotation marks omitted). Petitioner filed his Petition on September 28, 2020, while temporarily confined at the Federal Transfer Center (FTC) in Oklahoma City, Oklahoma. (Doc. 1). Petitioner did not file a change of address form, but his subsequent filings with the court indicate that he has been transferred to the United States Penitentiary (USP) in Tucson, Arizona. (Docs. 7, 10, 11, 12). The Federal Bureau of Prison's Inmate Locator lists Petitioner's current location as USP Tucson.
Inmate Locator, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Jan. 28, 2021). See United States v. Muskett, 970 F.3d 1233, 1237 n.4 (10th Cir. 2020) (taking judicial notice of inmate's status according to the Bureau of Prison's Inmate Locator).
"The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is 'the person who has custody over [the petitioner].'" Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting 28 U.S.C. §§ 2242, 2243). At the time he filed the Petition, the proper respondent was the FTC warden. "[J]urisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change." Santillanes v. U.S. Parole Comm'n, 754 F.2d 887, 888 (10th Cir. 1985). Thus, Petitioner's transfer to USP Tuscon did not divest this court of jurisdiction over the Petition, nor did it destroy the court's jurisdiction over the FTC warden. However, "there is generally only one proper respondent to a given prisoner's habeas petition. This custodian . . . is 'the person' with the ability to produce the prisoner's body before the habeas court." Rumsfield, 542 U.S. at 434-35. This court lacks jurisdiction over Petitioner's current custodian at USP Tucson. And, once Petitioner was transferred, the FTC warden became powerless to effect any relief this court might order. See Gorbey v. Warden of the Fed. Transfer Ctr., 580 F. App'x 682, 682-83 (10th Cir. 2014) (affirming dismissal of § 2241 petition, which was filed in the Western District of Oklahoma while petitioner was confined at the FTC, before his eventual transfer to a federal prison in Kentucky, because the district court lacked jurisdiction over the Kentucky custodian and "the FTC Warden became powerless to effect any relief [the] Court might order"). "With no 'effectual relief possible, [Petitioner's] petition is moot." Griffin v. Kastner, 507 F. App'x 801, 802-03 (10th Cir. 2013) (finding that where the FTC warden no longer had custody of petitioner, who had been transferred to Missouri, FTC warden "would be powerless to provide any relief the district court might order," because petitioner was "outside the scope of the district court's habeas jurisdiction").
The Petition improperly names the United States of America as the respondent. (Doc. 1). Because the undersigned recommends dismissal of the Petition, the court "need not resolve the issue, and [may] leave[] the United States of America listed as respondent." Naranjo-Delgado v. United States, 2019 WL 2342689, at *n.1 (W.D. Okla. June 3, 2019). --------
II. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the court dismiss Petitioner's habeas Petition (Doc. 1) as moot. Petitioner's pending motions (Docs. 10, 11, 12) should likewise be denied as moot upon adoption of this recommendation.
The court advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before February 19, 2021, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The court 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).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.
ENTERED this 29th day of January, 2021.
/s/_________
AMANDA MAXFIELD GREEN
UNITED STATES MAGISTRATE JUDGE