United States District Court, D. South Carolina, Rock Hill Division
Timothy M. Cain United States District Judge
matter is before the court on Petitioner Tony Garner'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 Paige
Gossett filed a Report and Recommendation
(“Report”) recommending that the Petition be
dismissed without prejudice. (ECF No. 10). Petitioner filed
objections to the Report (ECF No. 12) and filed a supplement
to those objections (ECF No. 18).
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 the Federal
Correctional Institution Cumberland (“FCI
Cumberland”) in Cumberland, Maryland. (ECF No. 17).
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 FCI
Cumberland in Cumberland, Maryland, 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 Cumberland, who is
located in Maryland. Accordingly, this court is constrained
to conclude that it lacks jurisdiction to entertain this
habeas petition. Because 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 (ECF No. 10). Rather, the case
shall be transferred to the District Court of Maryland 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