United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
proceeding pro se, brings this action pursuant to 28 U.S.C.
§ 2241 for habeas relief. Pursuant to the provisions of
28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c),
D.S.C., the undersigned is authorized to review such
petitions for relief and submit findings and recommendations
to the District Court. The Petition is subject to summary
established local procedure in this judicial district, a
careful review has been made of the pro se pleadings and
motion to proceed in forma pauperis pursuant to the
procedural provisions of 28 U.S.C. § 1915 and the
Anti-Terrorism and Effective Death Penalty Act of 1996. The
review has been conducted in light of the following
precedents: Denton v. Hernandez, 504 U.S. 25 (1992);
Neitzke v. Williams, 490 U.S. 319, 324-25 (1989);
Haines v. Kerner, 404 U.S. 519 (1972); Nasim v.
Warden, Maryland House of Correction, 64 F.3d 951 (4th
Cir. 1995)(en banc); Todd v. Baskerville, 712 F.2d
70 (4th Cir. 1983); Loe v. Armistead, 582 F.2d 1291 (4th Cir.
1978); and Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978). The Petitioner is a pro se litigant, and thus his
pleadings are accorded liberal construction. Erickson v.
Pardus, 551 U.S. 89, 94 (2007)(per curiam); Cruz v.
Beto, 405 U.S. 319 (1972). Even under this less
stringent standard, the petition is subject to summary
dismissal. The requirement of liberal construction does not
mean that the court can ignore a clear failure in the
pleading to allege facts which set forth a claim currently
cognizable in a federal district court. Weller v.
Department of Social Services, 901 F.2d 387, 390-91 (4th
this court is charged with screening Petitioner's lawsuit
to determine if “it plainly appears from the petition
and any attached exhibits that the petitioner is not entitled
to relief in the district court.” Rule 4 of Rules
Governing Section 2254 Cases in the United States District
Courts. Following the required initial review, it
is recommended that the Petition should be summarily
has filed a § 2241 Petition. Petitioner is currently in
federal custody in Texas. The District Court for the District
of South Carolina was the sentencing court for a 2009 charge,
reentry of deported alien, which Petitioner is contesting.
See No. 6:09-cr-00447-GRA (D.S.C). Petitioner was sentenced
in July 2009. Petitioner has already fully served this
sentence and is in custody in Texas under charges from two
other district courts. See No. 5:14-cr-1050, Southern
District of Texas; No. 3:17-cr-2228-AJB, Southern District of
California. In South Carolina in 2009, Petitioner was
sentenced to 41 months and two years supervised release.
Petitioner has already served out the sentence of this Court
and is not in custody on this charge. United States district
courts have jurisdiction to entertain petitions for habeas
relief only from persons who are “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2241(c)(3); see also
28 U.S.C. § 2254(a). The United States Supreme Court
“interpreted the statutory language as requiring that
the habeas petitioner be ‘in custody' under the
conviction or sentence under attack at the time his petition
is filed.” Maleng v. Cook, 490 U.S. 488,
490-91 (1989)(citing Carafas v. LaVallee, 391 U.S.
234, 238 (1968). The Petition is subject to summary dismissal
because Petitioner is not in custody under the conviction
under attack in his Petition.
to the extent the § 2241 Petition is an attempt to file
a § 2255 motion in the sentencing court, such motion
would also be subject to dismissal because Petitioner is not
in custody on this charge. Moreover, the time for filing a
§ 2255 motion is one year from “the date on which
the judgment of conviction becomes final” and
Petitioner is well outside that time period. See 28 U.S.C.
this court is without territorial jurisdiction of the
respondent. To the extent Petitioner attempts to file a
§ 2241 Petition for his current confinement in Texas,
“[w]henever a § 2241 habeas petitioner seeks to
challenge his present physical custody within the United
States, he should name his warden as respondent and file the
petition in the district of confinement.” Rumsfeld
v. Padilla, 542 U.S. 426, 447 (2004)(emphasis added).
This court is not the district of confinement.
“Congress intended to limit the jurisdiction of a
district court to prisoners in custody within its territorial
jurisdiction.” Braden v. 30th Judicial Circuit
Court of Kentucky, 410 U.S. 484, 509 (1973). The United
States Supreme Court recognized the purpose behind this rule:
This rule, derived from the terms of the habeas statute,
serves the important purpose of preventing forum shopping by
habeas petitioners. Without it, a prisoner could name a
high-level supervisory official as respondent and then sue
that person wherever he is amenable to long-arm jurisdiction.
The result would be rampant forum shopping, district courts
with overlapping jurisdiction, and the very inconvenience,
expense, and embarrassment Congress sought to avoid when it
added the jurisdictional limitation 137 years ago.
Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004).
it is recommended that the Petition in this case be dismissed
without prejudice and without requiring the respondent to
file a return.