Norwood v. Williams
For the reasons set forth in the attached, the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 [ECF No. 1] is hereby TRANSFERRED to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1404(a). Signed by Judge Michael P. Shea on 1/9/2018. (Self, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Case No. 3:17cv1636(MPS)
The petitioner, Michael Norwood, is incarcerated at the Federal Correctional Institution
in Danbury, Connecticut. He has filed a petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 challenging an order of restitution issued by a district judge in the United States District
Court for the District of New Jersey as part of Norwood’s criminal sentence.
On January 10, 1997, a jury found the petitioner guilty of bank robbery, armed bank
robbery, carjacking and two counts of use of a firearm in relation to a crime of violence. See
United States v. Norwood, Case No. 96cr232(JBS) (D.N.J. 1996) (ECF No. 99, Jury Verdict).1
On January 13, 1997, a jury found the petitioner guilty of one count of possession of a firearm by
an armed career criminal. See id. (ECF No. 102, Jury Verdict). On May 30, 1997, a judge
sentenced the petitioner to a term of life plus twenty-five years, followed by five years of
supervised release and ordered the petitioner to pay $19,562.87 in restitution and a special
assessment of $300.00. See id., (ECF No. 110, Judgment). On February 10, 1998, the Court of
See United States District Court for the District of New Jersey, CM/ECF System,
available at http://www.pacer.gov (the online national index providing public access to court
Appeals for the Third Circuit affirmed the conviction and sentence. See United States v.
Norwood, 142 F.3d 430 (3rd Cir. 1998)(unpublished opinion).
On March 30, 2012, the Court of Appeals for the Third Circuit vacated the district court’s
denial of the petitioner’s motion to correct illegal sentence under 28 U.S.C. § 2255 and remanded
the case to the trial court for further proceedings with regard to the petitioner’s double jeopardy
claim. See United States v. Norwood, 472 F. App’x 113, 118, 120 (3rd Cir. March 30, 2012). On
July 31, 2012, the district court dismissed count one of the indictment, resentenced the petitioner
to 627 months of imprisonment and noted that all other conditions of the prior judgment would
remain in effect. See Norwood v. United States, Case No. 1:10cv6744(JEI) (D.N.J. 2010) (ECF
No. 16, Order Dismissing Count 1 of Indictment). Thus, the 627-month term of imprisonment
was to be followed by five years of supervised release and the petitioner was required to pay
$19,562.87 in restitution and a special assessment of $250.00. See United States v. Norwood,
Case No. 96cr232(JBS) (D.N.J. 1996) (ECF No. 171, Amended Judgment).
On June 18, 2013, a district judge resentenced the petitioner to a total effective sentence
of 500 months of imprisonment followed by three years of supervised release and ordered the
petitioner to pay $19,562.87 in restitution and a special assessment of $250.00. See id., ((ECF
No. 171, Amended Judgment). On May 13, 2014, the Court of Appeals for the Third Circuit
affirmed the amended judgment of conviction, including the order of restitution. See United
States v. Norwood, 566 F. App’x 123, 128-29 (3rd Cir. 2014). On October 6, 2014, the United
States Supreme Court denied the petition for writ of certiorari. See Norwood v. United States,
___ U.S. ___, 135 S. Ct. 344 (2014).
The petitioner challenges the lien placed on his inmate trust fund account by the Bureau
of Prisons to collect the balance of the restitution owed by him. The petitioner contends that the
order of restitution should be terminated because more than twenty years has passed since his
initial sentencing. He seeks an order directing the Bureau of Prisons to remove the lien on his
prisoner account balance in the amount of $6,031.40 and an order directing a district judge to
amend his judgment of conviction to terminate the order of restitution.
In Kaminski v. United States, 339 F.3d 84 (2d Cir. 2003), the Second Circuit held that
challenges solely to restitution are not properly brought under § 2255 because such challenges do
not seek relief in the form of a release from custody. Id. at 86–89. Thus, the petitioner’s
challenge to the order of restitution is properly filed under 28 U.S.C. § 2241.
Title 28 U.S.C. § 2241(a) provides that writs of habeas corpus may be granted by the
district courts “within their respective jurisdictions.” A writ of habeas corpus operates not upon
the prisoner, but upon the prisoner's custodian. See Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 494–495 (1973). Venue is appropriate only in the district in which the
petitioner is confined for a “core” petition for writ of habeas corpus filed under 28 U.S.C. § 2241
challenging his or her present physical confinement. Rumsfeld v. Padilla, 542 U.S. 426, 446–47
(2004) (“the district of confinement is synonymous with the district court that has territorial
jurisdiction over the proper respondent ... because ... [b]y definition, the immediate custodian and
the prisoner reside in the same district.”). The rule that the proper venue for a challenge to
present physical custody lies only in the district of confinement is based on the requirement that
the court issuing the writ have jurisdiction over the entity capable of effecting the relief sought in
the petition; in the context of a challenge to physical custody, that entity is the petitioner's
custodian. See, e.g., Braden, 410 U.S. at 495 (“The important fact to be observed in regard to the
mode of procedure upon [a writ of habeas corpus], that it is directed to, and served upon ... [the]
jailer ... compelling the oppressor to release [the petitioner's] constraint”).
The “immediate physical custodian rule” does not apply when a habeas petitioner
challenges something other than his present physical confinement. See Padilla, 542 U.S. at 438
(discussing instances in which a petitioner may name as respondent an entity other than
immediate physical custodian under section 2241). Thus, when a petitioner does not seek release
from custody, venue may not be appropriate in the district of confinement. See Braden, 410 U.S.
at 500 (discussing application of traditional venue considerations in the context of a section 2241
petition challenging interstate detainer); Padilla, 542 U.S. at 438 (noting that a district court in a
location other than the district of confinement may consider a petition under 2241 where petition
does not challenge immediate physical confinement).
In Braden, the Supreme Court articulated several factors to be considered in determining
whether venue is proper in a habeas suit. Those factors include: (1) “where all of the material
events took place”; (2) where “the records and witnesses pertinent to petitioner's claim are likely
to be found”; and (3) the convenience of the forum for both the respondent and the petitioner.
410 U.S. at 493–494. The court has authority to transfer a case to another district court pursuant
to 28 U.S.C. § 1404(a), which provides that “[f]or the convenience of parties and witnesses, in
the interest of justice, a district court may transfer any civil action to any other district or division
where it might have been brought.” A district court may transfer a case on a motion by either
party or sua sponte on its own motion. See Lead Industries Ass’n, Inc. v. Occupational Safety
and Health Admin., 610 F.2d 70, 79 n.17 (2d Cir. 1979) (“the broad language of 28 U.S.C. §
1404(a) would seem to permit a court to order transfer sua sponte”); Smith v. City of New
York, 950 F, Supp. 55, 59 (E.D.N.Y. 1996) (noting that Section 1404(a) “allows a court to
order transfer of an action sua sponte”); see also United States ex rel. Meadows v. State of New
York, 426 F.2d 1176, 1183 n. 9 (2d Cir. 1970) (“Since habeas corpus proceedings are civil in
nature, they are subsumed under the phrase ‘any civil action’ [in 28 U.S.C. § 1404(a)].”).
According to the docket of the petitioner’s criminal case in the District of New Jersey, on
June 23, 2016, the government moved to authorize payment of $6,031.40 from the petitioner’s
inmate account towards the $19,562.87 order of restitution. See United States v. Norwood, Case
No. 96cr232(JBS) (D.N.J. 1996) (ECF No. 211, Mot. Authorize Payment from Trust Fund). In
response, the petitioner has filed an objection to the motion and his own motion to authorize the
removal of the lien on his inmate account balance. See id., (ECF Nos. 213-215). The
government has filed a reply to the petitioner’s objection and motion to remove the lien. See id.,
(ECF No. 217). On August 6, 2016, a district judge issued an order that the case be reopened to
determine the government’s motion to authorize payment from the petitioner’s inmate account
towards the restitution order and the petitioner’s motion to authorize the removal of the lien from
his trust fund account. The court has not yet ruled on either motion.
In view of the motions pending in the petitioner’s criminal case, the fact that the
petitioner seeks an order that the district court amend his judgment of conviction and in
consideration of each of the three venue factors discussed in Braden, the court concludes that the
District of Connecticut is not the appropriate venue for this action. See Braden, 410 U.S. at 500
(stating that traditional venue considerations apply when immediate physical custodian rule does
not and noting authority of district courts to transfer habeas cases to the most convenient venue);
Gardner v. Williamson, No. 3:07CV1788, 2008 WL 1752229, at *4 (M.D. Pa. Apr. 14, 2008)
(adopting recommendation that section 2241 petition challenging Bureau of Prisons
determination of amount and schedule of payments towards order of restitution be transferred to
district court in which petitioner had been sentenced) (citing Verissimo v. INS, 204 F. Supp. 2d
818, 820 (D.N.J. 2002) (finding that “a habeas petition may be transferred to the district court of
the state in which the petitioner was sentenced and convicted, even if the petitioner was
transferred to prison in a different state.”); Wilkins v. Erickson, 484 F.2d 969, 973 (8th Cir.1973)
(allowing transfer of habeas corpus case from the District of South Dakota to the District of
Montana because “Montana, the state of conviction and sentencing, is the most convenient forum
because of the availability of witnesses and records.”). In the interests of justice and because the
District of New Jersey provides the more convenient and appropriate forum for the resolution of
petitioner's claims, the court deems it appropriate to exercise its authority to transfer this action
to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. §
For the reasons stated above, the Petition for Writ of Habeas Corpus filed pursuant to 28
U.S.C. § 2241 [ECF No. 1] is TRANSFERRED to the United States District Court for the
District of New Jersey pursuant to 28 U.S.C. § 1404(a). Any appeal from this order would not
be taken in good faith, and in any event this order is not appealable. Chapple v. Herinsky, 961
F.2d 372, 374 (2d Cir. 1992).
SO ORDERED at Hartford, Connecticut this ___9th____ day of ____January__, 2018.
Michael P. Shea
United States District Judge
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