United States District Court, D. South Carolina, Anderson/Greenwood Division
DEAN C. PLASKETT a/k/a Dean Clifford Plaskett Petitioner,
MAUREEN CRUZ, Warden of FCI Williamsburg, Respondent.
ORDER REJECTING THE REPORT AND RECOMMENDATION,
GRANTING RESPONDENT'S MOTION TO TRANSFER, AND DISMISSING
RESPONDENT'S MOTION TO DISMISS WITHOUT PREJUDICE
GEIGER LEWIS UNITED STATES DISTRICT JUDGE
filed this as a 28 U.S.C. § 2241 action. He is
proceeding pro se. The matter is before the Court for review
of the Report and Recommendation (Report) of the United
States Magistrate Judge suggesting Respondent's motion to
dismiss be granted, the petition be denied, and the motion to
transfer be denied. The Report was made in accordance with 28
U.S.C. § 636 and Local Civil Rule 73.02 for the District
of South Carolina.
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight. The
responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270 (1976).
The Court is charged with making a de novo determination of
those portions of the Report to which specific objection is
made, and the Court may accept, reject, or modify, in whole
or in part, the recommendations of the Magistrate Judge or
recommit the matter with instructions. 28 U.S.C. §
Magistrate Judge filed the Report on July 13, 2017,
Petitioner filed his objections on July 24, 2017, Respondent
filed a reply to the objections on July 31, 2017, and
Petitioner filed a sur-reply to Respondent's reply on
August 10, 2017. The matter is now ripe for the Court's
Petitioner was incarcerated in this district when he filed
his petition, he is now under supervised release in the
Virgin Islands. His supervising agent is also located there.
He was convicted of the charges at issue in his § 2241
petition in the District Court of the Virgin Islands, a court
of the Third Circuit.
federal habeas statute straightforwardly provides ... 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). "The writ, or order to show cause shall be
directed to the person having custody of the person
detained." 28 U.S.C. § 2243. "The consistent
use of the definite article in reference to the custodian
indicates . . . there is generally only one proper respondent
to a given prisoner's habeas petition. This custodian,
moreover, is 'the person' with the ability to produce
the prisoner's body before the habeas court."
Rumsfeld, 542 U.S. at 434-35 (quoting
the proper respondent is critical because "[t]he writ of
habeas corpus does not act upon the prisoner who seeks
relief, but upon the person who holds him in what is alleged
to be unlawful custody." Braden v. 30th Judicial
Circuit Court of Ky., 410 U.S. 484, 494-95 (1973).
"The whole force of the writ is spent upon the
respondent." Id. at 495 (citation omitted)
(internal quotation marks omitted).
petitioner under supervised release is considered to be
"in custody" for purposes of a § 2241
petition. See Maleng v. Cook, 490 U.S. 488, 491
(1989) (holding a prisoner who had been placed on parole was
still "in custody" under his unexpired sentence
because his "release from physical confinement under the
sentence in question was not unconditional; instead, it was
explicitly conditioned on his reporting regularly to his
parole officer, remaining in a particular community,
residence, and job, and refraining from certain
activities.") The petitioner's custodian is the
agent who is supervising him. See Jones v.
Cunningham, 371 U.S. 236, 243 (1963) (stating the
petitioner's parole agents were his custodians under the
habeas corpus statute).
instance, Petitioner's supervised release agent is the
proper respondent to his § 2241 petition in that she is
the one who currently has custody over him.
courts are limited to granting habeas relief 'within
their respective jurisdictions.'" Rumsfeld,
542 U.S. at 442 (quoting 28 U.S.C. § 2241(a)).
The Supreme Court has "interpreted this language to
require 'nothing more than that the court issuing the
writ have jurisdiction over the custodian.'" Id.
(quoting Braden, 410 U.S. at 495). "[T]he
custodian's absence from the territorial jurisdiction of
the district court is fatal to habeas jurisdiction."
Id. at 445. Consequently, the Court has jurisdiction
over Petitioner's § 2241 habeas petition only if it
has jurisdiction over Petitioner's custodian. Here, the
Court lacks jurisdiction over Petitioner's current
custodian, who is located in the Virgin Islands.
Magistrate Judge erred in two respects in the Report. First,
she suggests the Court dismiss this action. As explained
above, however, binding authority counsels the Court it lacks
habeas jurisdiction to entertain the petition.
was convicted in the Third Circuit and he is currently under
supervised release there. Thus, Third Circuit, not Fourth
Circuit, law controls both questions concerning the validity
of his conviction and whether he is entitled to habeas
relief. As such, the District Court of the Virgin Islands is
in a better position to apply Third Circuit law than is this
Court. More importantly, though, Petitioner's
custodian's absence from the territorial jurisdiction of
this Court is fatal to its jurisdiction to consider the
merits of Petitioner's petition.
even if this Court were to assess the petition and then grant
the relief Petitioner seeks, Respondent lacks the ability to
fulfill an order by this Court granting the petition. This is
so because Petitioner is no longer in Respondent's
custody. That is why Petitioner's § 2241 petition
must be transferred: so it can be presented to his immediate
custodian in the Virgin Islands.
Magistrate Judge's second error was in adopting
Petitioner's reliance on 28 U.S.C. § 1404(d) for the