United States District Court, D. South Carolina, Anderson/Greenwood Division
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE.
matter is before the court on Petitioner Robert Moses
Wilkerson's petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241. In accordance with 28 U.S.C. §
636(b) and Local Rule 73.02(B)(2), D.S.C., all pre-trial
proceedings were referred to a magistrate
judge.Magistrate Judge Jacquelyn D. Austin filed
a Report and Recommendation (“Report”)
recommending Respondent's to Dismiss or, in the
alternative, for Summary Judgment Motion (ECF No. 17) be
granted and the petition be dismissed. (ECF No. 25). The
Magistrate Judge advised the parties of the procedures and
requirements for filing objections to the Report and the
serious consequences if they failed to do so. (ECF No. 25-1).
Petitioner timely filed objections to the Report. (ECF No.
court is obligated to conduct a de novo review of every
portion of the magistrate judge's report to which
objections have been filed. Id. However, the court
need not conduct a de novo review when a party makes only
“general and conclusory objections that do not direct
the court to a specific error in the magistrate's
proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of a timely filed, specific objection, the magistrate
judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
Petitioner was incarcerated in this district when he filed
his petition, he is presently incarcerated at Gilmer Federal
Correctional Institution in West Virginia. (ECF No. 15).
Ascertaining 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 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).
“The writ, or order to show cause shall be directed to
the person having custody of the person detained.” 28
U.S.C. § 2243. “[T]here 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
Petitioner's current custodian, the Warden of Gilmer-FCI
in West Virginia, is the proper respondent to his § 2241
petition in that he is the one who currently has custody over
Petitioner. Rumsfeld, 542 U.S. at 434-35. Moreover,
“the custodian's absence from the territorial
jurisdiction of the district court is fatal to habeas
jurisdiction.” Id. at 445. Here, the court
lacks jurisdiction over Petitioner's current custodian,
the Warden of FCI-Gilmer, who is located in West Virginia.
Accordingly, this court is constrained to conclude that it
lacks jurisdiction to entertain this habeas petition.
the court lacks jurisdiction, it must now determine whether
to dismiss this action or to transfer the case to the
appropriate jurisdiction. The court may, in the interests of
justice, transfer the case to the appropriate court. See
Feller v. Brock, 802 F.2d 722, 729, n.7 (4th Cir. 1986)
(“Although a motion by one of the parties is ordinarily
required for transfer, the district court may consider the
possibility of transfer sua sponte.”) (citing 15 C.
Wright, A. Miller, E. Cooper, Federal Practice and Procedure
§ 3844 at 329-30 (1986)). Here, Petitioner was
transferred to a prison in a different state after filing his
habeas petition. Respondent has filed a motion to dismiss or,
in the alternative, for summary judgment and this motion has
been fully briefed. Thus, dismissing this case would be a
harsh measure and the court finds that transfer, rather than
dismissal, would serve the interests of justice and would not
prejudice either party.
after a thorough review of the Report and the record in this
case pursuant to the standards set forth above, the court
finds it is without jurisdiction. Therefore, the court
declines to adopt the Report. Rather, the case shall be
transferred to the Northern District of West Virginia for
IS SO ORDERED.
A magistrate judge makes only
a recommendation to the 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, 270-71 (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