Broughton v. Holland
OPINION AND ORDER : re 2 Report and Recommendations--(1) the Magistrate Judge's Recommended Disposition [DE #2] is ADOPTED as and for the opinion of the Court; and (2) the Clerk of the Court is DIRECTED to TRANSFER the petitioners petition for a writ of habeas corpus [DE # 1 ] to the United States District Court for the Northern District of Alabama, Southern Division at Birmingham. Signed by Judge Karl S. Forester on 2/20/13.(SYD)cc: mailed to pro se filer[Transferred from Kentucky Eastern on 2/20/2013.]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at LONDON
CIVIL ACTION NO. 6:13-cv-2-KSF-REW
OPINION & ORDER
On December 28, 2012, petitioner, Cepeda Broughton, filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 [DE #1] seeking relief from a July 2010 conviction in
the Jefferson County District Court in Birmingham, Alabama. Concurrently with the petition before
this Court, Broughton also filed a second petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 seeking relief from a September 2010 conviction in the Criminal Court of Hamilton,
Tennessee. See Case No. 6:13-cv-1-DLB-REW. However, only the petition related to the Alabama
conviction is pending before this Court. Both petitions raise claims of ineffective assistance of
counsel based on counsel’s alleged failure to file a notice of appeal in accordance with Broughton’s
instructions, as well as counsel’s alleged failure to advise Broughton that, as a consequence of his
guilty plea, he could receive an increased criminal history score under the United States Sentencing
Guidelines in the event he faced future federal charges. Pursuant to Rule 4 of the Rules Governing
§ 2254 Cases in the United States District Courts and 28 U.S.C. § 636(b), both petitions were
forwarded to the United States Magistrate Judge for an initial review.
On January 25, 2013, the Magistrate Judge filed his Recommended Disposition
recommending that both petitions be transferred to the respective district of conviction [DE #2].
The Magistrate Judge first noted that, from the face of Broughton’s petitions, it is unclear whether
he is “in custody” within the meaning of 28 U.S.C. § 2254(a) pursuant to either the Tennessee or
Alabama state court judgments. Complicating matters, Broughton is currently in physical custody
at the United States Penitentiary-McCreary (“USP-McCreary”) in this District, apparently pursuant
to a federal judgment in the United States District Court for the Northern District of Georgia at
Atlanta. However, whether Broughton currently suffers “present restraint” from his Alabama
conviction depends upon the particulars of this conviction, as well as Alabama law. In addition, the
Magistrate Judge noted that, to the extent that Broughton challenges his Alabama conviction, a
clearly proper respondent for his petition is the attorney general for Alabama, while the propriety of
naming the USP-McCreary warden as a respondent is unclear. Because an Alabama official has
“legal control” over the “challenged custody,” and Alabama has jurisdiction over the state officer
alleged to be holding Broughton in unlawful custody, transfer of Broughton’s petition to Alabama
is permissible. Finally, the Magistrate Judge determined that transfer of Broughton’s petition to
Alabama is warranted and appropriate under the standards of 28 U.S.C. §1404(a). For all of these
reasons, the Magistrate Judge recommended that this Court transfer the petition for writ of habeas
corpus filed in this case to the United States District Court for the Northern District of Alabama,
Southern Division at Birmingham. See 28 U.S.C. § 81(a)(3).
Neither Broughton nor the Respondent filed objections to the Magistrate Judge’s
Recommended Disposition and the time for same has passed. Although this Court must make a de
novo determination of those portions of the Magistrate Judge’s recommendation to which objection
is made, 28 U.S.C. § 636(b)(1)(B), “[i]t does not appear that Congress intended to require district
court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Moreover,
a party who fails to file objections with the Court to a Magistrate Judge’s recommendation waives
the right to appeal. See Wright v. Holbrook, 794 F.2d 1152, 1154-55 (6th Cir. 1986). Nevertheless,
the Court, having examined the record, is in agreement with the Magistrate Judge’s Recommended
Disposition and will TRANSFER Broughton’s petition for writ of habeas corpus to the United
States District Court for the Northern District of Alabama, Southern Division at Birmingham.1
Accordingly, the Court, being otherwise fully and sufficiently advised, HEREBY ORDERS
the Magistrate Judge’s Recommended Disposition [DE #2] is
ADOPTED as and for the opinion of the Court; and
the Clerk of the Court is DIRECTED to TRANSFER the
petitioner’s petition for a writ of habeas corpus [DE #1] to the United
States District Court for the Northern District of Alabama, Southern
Division at Birmingham.
This February 20, 2013.
As noted by the Magistrate Judge, because a transfer order is not a “final order” within
the meaning of 28 U.S.C. § 2253(c)(1)(A), there is no need for a certificate of appealability
analysis. See Van Orman v. Purkett, 43 F.3d 1201, 1202 (8th Cir. 1992); Mohler v. Gunja, 11
F.App’x 321 (4th Cir. 2001).
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