Opinion
Case No. CIV-20-160-F
04-07-2020
DARNELL NASH, Petitioner, v. WARDEN OKLAHOMA TRANSFER CENTER, Respondent.
REPORT AND RECOMMENDATION
Before the Court is Petitioner's 28 U.S.C. § 2241 petition. Doc.1. Judge Stephen P. Friot referred the matter to the undersigned under 28 U.S.C. § 636(b)(1)(B) & (C). Doc. 4. Petitioner Nash, a pro se federal prisoner and transgender female, has also filed a motion seeking injunctive relief, two amended petitions, and supplemental documents. Docs. 6, 7, 8, 14, 15. Having received Petitioner's filing fee on March 25, 2020, the Court may issue this report and recommendation. See Docs. 10, 12.
This report cites court documents by their electronic case filing designation and pagination. Quotations are verbatim unless otherwise shown.
I. Background.
In the United States District Court for the Northern District of Ohio, Nash pleaded guilty to one count of conspiracy to commit mail and wire fraud, ten counts of aiding and abetting wire fraud, twenty counts of aiding and abetting mail fraud, one count of aiding and abetting aggravated identity theft, and one count of money laundering. See 18 U.S.C. §§ 1349, 1343, 1341, 1028A, 1957. At sentencing, Nash's counsel presented evidence regarding her transgender status, her gender dysphoria and that it led to physical and sexual abuse (including while in custody), homelessness, and forced participation in the sex trade. Nash v. United States, No. 17-3739, 2018 WL 3424999, at *1 (6th Cir. Jan. 10, 2018) (Nash II). Counsel also presented evidence regarding Nash's unstable mental health. Id. The district court sentenced Nash to 175 months' imprisonment, and the Sixth Circuit affirmed. Id.
Nash filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, arguing ineffective assistance of counsel and challenging her placement in a men's prison for a substantial length of time. Nash v. United States, No. 1:13CR467, 2017 WL 2693556, at *1 (N.D. Ohio June 21, 2017) (Nash I). In dismissing her improper housing claim, the district court determined this claim should be brought under § 2241. Id. Nash did not appeal this part of the district court's ruling. Nash II, 2018 WL 3424999, at *3.
"She asserts that she is a vulnerable victim, has been denied medical care, was placed in improper housing, and that she has faced abuse since her incarceration. This is more properly understood as 'an attack upon the execution of the sentence' cognizable in § 2241." Nash I, 2017 WL 2693556, at *1.
II. Petitioner's § 2241 filing.
While temporarily housed at the Federal Transfer Center in Oklahoma City, Oklahoma Nash filed the Petition before the Court. Doc. 1. Petitioner has since been transferred to the Federal Correctional Institution in Yazoo City, Mississippi. See Doc. 9. Petitioner has filed an amended petition naming "Warden Fox" as the Respondent. See Doc. 14.
Petitioner has since filed a notice identifying her custodian as "Shannon Withers." See Doc. 15.
In her pleadings before this Court, Nash challenges her sentencing counsel's performance. See Doc. 7, at 2 (challenging counsel's "fail[ure] to argue Nash[']s extreme vulnerability at sentencing"), 3 ("In this case, Nash is not attacking the manner of the execution of the sentence itself. Rather, Nash is challenging her counsel[']s performance at sentence."); Doc. 14, at 7 (challenging counsel's failure to "competently investigate, brief and argue Nash['s] extreme vulnerability to victimization to sentencing"). Such a collateral attack, however, is appropriate for a § 2255 challenge before the sentencing court, the Northern District of Ohio. 28 U.S.C. § 2255(a) (permitting an inmate serving a sentence after conviction of a federal crime to "move the court which imposed the sentence to vacate, set aside or correct the sentence."). Similarly, any challenge based on the unconstitutionality of the sentence, double jeopardy, or Ex Post Facto clause violations, Doc. 7, at 2-3, Doc. 14, at 7-8, are collateral attacks. See Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.1965) ("The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.").
Petitioner has unsuccessfully sought relief under § 2255 before the Northern District of Ohio. Nash II, 2017 WL 2693556, at *3. And, a prisoner may not file a second or successive § 2255 motion unless she first obtains an order from the circuit court authorizing the district court to consider the motion. 28 U.S.C. § 2244(b)(3)(A); id. § 2255(h). Absent such authorization, a district court lacks jurisdiction to address the merits of a second or successive § 2255 motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
Other contentions sound in a challenge to her confinement, not the execution of her sentence. See Doc. 7, at 1 (raising due process claim arguing a now-convicted former BOP prison guard "repeatedly raped" her and amounting to "unconstitutional conditions of confinement"); Doc. 14, at 9 (alleging "135 rapes and violent sexual assaults-including multiple rapes by a prison guard" and stating that requiring her to assert a civil rights claim would be "nothing more than human trafficking and forced prostitution by another name"). To the extent Nash seeks such relief, she must bring this challenge under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). See Palma-Salazar v. Davis, 677 F.3d 1031, 1033 (10th Cir. 2012).
Liberally construing Nash's claims to challenge the BOP's execution of her sentence, in that the BOP's placement of her has resulted in her enduring repeated rapes and sexual assaults, and that the "BOP cannot adequately address Nash['s] extreme vulnerability to victimization . . . .," such claims are moot. Doc. 7, at 1. A § 2241 petition must be filed in the district where the prisoner is confined. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011). Though Nash was temporarily confined at the Federal Transfer Center in Oklahoma City, Oklahoma, when she filed this action, she was later transferred to a facility in Yazoo City, Mississippi, where she now resides. See Doc. 9.
"[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). Nonetheless, Petitioner's transfer deprives this Court of enforcing any "effectual relief" that might be available. The Warden of the Federal Transfer Center is no longer Petitioner's custodian and this Court lacks jurisdiction over Petitioner's current custodian in Mississippi. SeeRumsfield v. Padilla, 542 U.S. 426, 442 (2004); see also Gorbey v. Warden of the Fed. Transfer Ctr., 580 F. App'x 682, 682-83 (10th Cir. 2014) (affirming dismissal of § 2241 petition due to lack of jurisdiction over Kentucky custodian and inability to enforce any effectual relief and recognizing that petitioner's transfer from the FTC to a federal facility in Kentucky "did not divest [the] Court of jurisdiction over the petition, nor did it destroy the Court's jurisdiction over the FTC Warden[,] [b]ut once Petitioner was transferred, the FTC Warden became powerless to effect any relief [the] Court might order"); Griffin v. Kastner, 507 F. App'x 801, 802 (10th Cir. 2013) (finding claim for relief brought under § 2241 moot with no effectual relief possible where the FTC warden no longer had custody of petitioner and would be powerless to provide any relief and where petitioner was currently detained in Missouri "outside the 'district of confinement' and therefore outside the scope of the district court's habeas jurisdiction").
III. Recommendation and right to object.
The undersigned recommends that the Petition, Doc. 1, and any amended petitions and supplements, Docs. 7, 8, 14, be dismissed without prejudice. Adoption of this report and recommendation will moot any outstanding motions. See Doc. 6, 13.
The undersigned advises Plaintiff of her right to file an objection to this Report and Recommendation with the Clerk of Court on or before May 12, 2020, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Plaintiff that failure to file a timely objection to this Report and Recommendation waives her 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 moves to "suspend" proceedings in this case until after April 18, 2020, when the Federal Bureau of Prisons is scheduled to lift its Covid-19 measures. See Doc. 15. The undersigned has extended the twenty-one-day period for objecting to the report and recommendation to account for this period. Therefore, Petitioner's motion to suspend proceedings is DENIED. --------
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 7th day of April, 2020.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE