United States District Court, D. South Carolina, Charleston Division
William S. McLean, Jr., Petitioner,
F.C.I. Edgefield Acting Warden W. Vereen, Respondent.
REPORT AND RECOMMENDATION
GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on federal prisoner William
McLean's petition for a writ of habeas corpus under 28
U.S.C. § 2241. Under 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is
authorized to review this matter and make a recommendation to
the District Judge. For the following reasons, the
undersigned recommends transferring this matter to the
Northern District of West Virginia.
McLean filed his petition, he was imprisoned at FCI
Edgefield, which is in this District. However, in a recently
filed motion to stay, McLean notified the Court that he was
being transferred to another prison. (Dkt. No. 31.) The
Bureau of Prisons' inmate locator web siteconfirms that
McLean has been transferred and is now incarcerated at FCI
Hazelton in Bruceton Mills, West Virginia.
post-filing transfer raises the issue of whether Acting
Warden Vereen is still the proper respondent in this case.
Ascertaining the proper respondent in a § 2241 case 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
Ct. of Ky., 410 U.S. 484, 494-95 (1973). For that
reason, “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); see
also 28 U.S.C. § 2243 (“The writ . . . shall
be directed to the person having custody of the person
detained.”). “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
§ 2242). When McLean filed his petition, Acting Warden
Vereen was that one proper respondent, as he could produce
McLean in court. Now, however, McLean no longer has that
ability. Rather, the one proper respondent is the warden of
proper respondent's “absence from the territorial
jurisdiction of the district court is fatal to habeas
jurisdiction.” Rumsfeld, 542 U.S. at 445. This
Court has no personal jurisdiction over the warden of FCI
Hazelton, who is in West Virginia. Thus, the undersigned is
constrained to conclude the Court lacks jurisdiction.
argues that his transfer does not make his case moot because
he was transferred as retaliation for filing this case. (Dkt.
No. 31 at 1.) Determining the motivation behind the transfer
is unnecessary; whatever that reason may be, the undersigned
agrees that the transfer does not make the case moot. The
transfer raises only a jurisdictional problem.
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.”) (citation omitted)). Here, a response to the
petition is pending, and McLean has filed several motions.
Consequently, dismissing the case would be a harsh measure,
while transferring it would serve the interests of justice
and not prejudice either side.
reasons set forth above, the undersigned recommends that the
Court transfer this case to the Northern District of West
IS SO RECOMMENDED.
of Right to File Objections to Report and
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify
the portions of the Report and Recommendation to which
objections are made and the basis for such
objections. “[I]n the absence of a timely
filed objection, a district court need not conduct a de novo
review, but instead must ‘only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.'” Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310
(4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
L. Blume, Clerk
United States District CourtPost
Office Box 835Charleston, South Carolina
29402Failure to timely file specific
written objections to this Report and Recommendation will
result in waiver of the right to appeal from a judgment of
the District Court based upon such Recommendation.
28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S.
140 (1985); Wright ...