Gonzalez v. Grondolsky

Filing 32

Judge Mark G. Mastroianni: MEMORANDUM AND ORDER entered. For the reasons, the Court DISMISSES Petitioner's Petition for Writ of Habeas Corpus WITHOUT PREJUDICE to Petitioner refiling in the United States District Court for the District of South Dakota against an appropriate respondent. The Court FINDS AS MOOT the Respondent's 17 Motion for Summary Judgment; cc/Petitioner. (Finn, Mary)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ESTEBAN GONZALEZ,

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Petitioner,
v.
J. GRONDOLSKY, WARDEN
Respondent.

Civil Action No. 14-13279-MGM

MEMORANDUM AND ORDER REGARDING
RESPONDENT’S MOTION FOR SUMMARY
JUDGMENT
(Dkt. No. 17)
January 20, 2016
MASTROIANNI, U.S.D.J.
I.

INTRODUCTION

Esteban Gonzalez (“Petitioner”), a federal prisoner formerly in custody at FMC Devens in
Ayer, Massachusetts, filed a self-prepared petition for a writ of habeas corpus under 28 U.S.C. §
2241. Petitioner seeks a two-hundred and sixty-five-day reduction of his federal sentence for time
spent “at liberty” after state officials erroneously released him instead of transferring him directly to
federal custody to continue serving his concurrent federal sentence.
Jeffrey Grondolsky (“Respondent”), Warden of Federal Medical Center—Devens, filed a
motion to dismiss. On July 15, 2015, however, the court converted Respondent’s motion to dismiss
into a motion for summary judgment because Respondent submitted materials which went outside
the facts alleged in the petition. See Gonzalez v. Grondolsky, 2015 WL 4274183, at *2-3 (D. Mass. July
15, 2015). The court provided Petitioner with an opportunity to supplement the record, which he
did. (Dkt. No. 28.) Respondent thereafter filed his own supplemental memorandum. (Dkt. No. 31.)
During this process, the court discovered that Petitioner no longer was detained at FMC Devens.

(Dkt. Nos. 26, 27.) He is now housed in a federal prison camp in Yankton, South Dakota. (Dkt. No.
28.) In light of this new information, the court will dismiss the petition without prejudice to
Petitioner refiling in the United States District Court for the District of South Dakota and naming
the warden of the Yankton facility as the respondent.

II. BACKGROUND AND PROCEDURAL HISTORY 1
On July 10, 2006, Petitioner was arrested in Kleberg County, Texas for violation of
probation in Case No. 01-CFR-201. On July 20, 2006, he was temporarily transferred to federal
custody to face federal charges. On December 20, 2007, Petitioner was sentenced for the federal
charges in the United States District Court for the Southern District of Texas to a 160-month term
of imprisonment in United States v. Gonzalez, No. 06-CR-00556-002. The sentencing court ordered
the federal sentence to run concurrently with any state sentence imposed in Case No. 01-CRF-201.
On March 6, 2008, Petitioner was returned to the custody of state officials. Thereafter, on May 29,
2008, Petitioner was sentenced in Kleberg County, Texas, in Case No. 01-CRF-201, to a five-year
term of imprisonment to be served in the Texas Department of Criminal Justice. The US Marshals
Service placed a detainer on Petitioner, dated July 17, 2008, and forwarded it to the Texas
Department of Criminal Justice.
On July 25, 2008, while in the custody of the Texas Department of Criminal Justice,
Petitioner was arrested by Nueces County, Texas officials, in connection with Case No. 06-1906-G.
On October 29, 2008, Petitioner satisfied the sentence in Case No. 01-CFR-201 but remained in
Nueces County custody due to Case. No. 06-1906-G. On November 13, 2008, Petitioner was
sentenced in Case No. 06-1906-G to a twenty-year term of imprisonment with credit for time
served. On February 2, 2009, Petitioner was returned to the custody of the Texas Department of
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The parties do not dispute the following facts, which are construed in a light most favorable to Petitioner.

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Criminal Justice from Nueces County. On June 28, 2012, Petitioner was paroled from his state
sentence in Case No. 06-1906-G and erroneously released; he should have been placed directly into
federal custody. On March 21, 2013, federal officials arrested Petitioner for service of his federal
sentence.
The Federal Bureau of Prisons (“BOP”) has computed Petitioner’s federal sentence as
follows. Petitioner received credit for the time he spent in state custody from July 10, 2006, the date
of his initial arrest by state officials, through December 19, 2007. His federal term commenced on
December 20, 2007, the date it was imposed, in order to effectuate concurrent service as ordered by
the sentencing court, until his release from state custody. However, the BOP has not credited
Petitioner with the 265 days between his release from state custody on June 28, 2012 and his federal
arrest on March 21, 2013, because he was not in custody during that time and, therefore, it is
considered “inoperative time.” Petitioner’s projected release date, assuming he receives all Good
Conduct Time available to him under 18 U.S.C. § 3634(b), is November 11, 2018.
On October 10, 2014, Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. (Dkt. No. 8.) After Respondent failed to respond, despite two service
orders issued by the court on October 10, 2014 and January 9, 2015 directing him to do so, 2 the
court issued Respondent a show-cause order on February 20, 2015. (Dkt. No. 14.) On March 6,
2015, Respondent’s counsel filed a notice of appearance, a response to the court’s show-cause order,
and a motion to dismiss. (Dkt. Nos. 16-18.) As mentioned, the court converted Respondent’s
motion to dismiss into a motion for summary judgment on July 15, 2015, because Respondent
submitted materials beyond the scope of the pleadings. See Gonzalez v. Grondolsky, 2015 WL 4274183,

The court notes that the docket does not indicate the October 10, 2014 service order was actually mailed to
Respondent, and Respondent has explained that the United States Attorney’s Office has no record of receipt of that
order. However, the docket does indicate that the January 9, 2015 service order was mailed to Respondent, and
Respondent has conceded that the United States Attorney’s Office received this order. (Dkt. Nos. 12, 18.)
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at *2-3. 3 In light of this conversion, the court provided both parties an opportunity to supplement
the record. Id. at *3. Subsequently, the court discovered that Plaintiff had been transferred from
FMC Devens to a federal facility in South Dakota. (Dkt. Nos. 26, 27.) Thereafter, Petitioner
confirmed his new address in “Yankton, South Dakota in a Federal Prison Camp.” (Dkt. No. 28.)

III. ANALYSIS
In light of Petitioner’s transfer outside of this district, the court deems it necessary to address
the propriety of continuing this action in this forum against Respondent.
The federal habeas statute provides that the appropriate respondent to a habeas petition is
“the person who has custody over” the petitioner. 28 U.S.C. § 2242. Similarly, under 28 U.S.C. §
2243, “the writ, or order to show cause shall be directed to the person having custody of the person
detained.” In addition, under 28 U.S.C. § 2241(a), district courts are limited to granting habeas relief
“within their respective jurisdictions.”
This statutory language, as well as the jurisprudence governing federal habeas petitions,
forms the basis for two distinct, but often overlapping, rules addressed by the Supreme Court in
Rumsfeld v. Padilla, 542 U.S. 426 (2004): the immediate-custodian rule, and the territorial-jurisdiction
rule. Under the first, “in habeas challenges to present physical confinement,” which is the type of
challenge Petitioner asserts here, “the default rule is that the proper respondent is the warden of the
facility where the prisoner is being held.” Id. at 435. 4 As a procedural matter, identifying the proper
respondent is critical because “[t]he writ of habeas corpus does not act upon the prisoner who seeks

The court also denied Petitioner’s motion for summary judgment, which was predicated solely on Respondent’s failure
to timely comply with the court’s service orders. See id. at *2.
4 In contrast, “a habeas petitioner who challenges a form of ‘custody’ other than present physical confinement”—for
example, future confinement based on a detainer lodged in another state—“may name as respondent the entity or
person who exercises legal control with respect to the challenged ‘custody.’” Id. at 438 (discussing the exception
recognized in Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973)). Here, Petitioner challenges the length of the
federal sentence he is currently serving and, therefore, his challenge is to his “present physical confinement,” also known
as a “core” habeas challenge. See id. at 435.
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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); see also Vasquez v. Reno, 233 F.3d 688, 690 (1st
Cir. 2000). In what the Supreme Court has described as “the classic statement”:
The important fact to be observed in regard to the mode of procedure upon this writ
is, that it is directed to, and served upon, not the person confined, but his jailer. It does
not reach the former except through the latter. The officer or person who serves it
does not unbar the prison doors, and set the prisoner freed, but the court relieves him
by compelling the oppressor to release his constraint. The whole force of the writ is
spent upon the respondent.
Id. at 495 (quoting In the Matter of Jackson, 15 Mich. 417, 439-40 (1867)); see also Vasquez, 233 F.3d at
691 (“The warden is the proper custodian because he has day-to-day control over the petitioner and
is able to produce the latter before the habeas court.”).
Under the territorial-jurisdiction rule, derived from the statutory language limiting district
courts to granting habeas relief “within their respective jurisdictions,” 28 U.S.C. § 2241(a), “the court
issuing the writ [must] have jurisdiction over the custodian.” Padilla, 542 U.S. at 442 (quoting Braden,
410 U.S. at 495). The Supreme Court has explained that “Congress added the limiting clause—
‘within their respective jurisdictions’—to the habeas statute in 1867 to avert the ‘inconvenient [and]
potentially embarrassing’ possibility that ‘every judge anywhere [could] issue the Great Writ on
behalf of applicants far distantly removed from the courts whereon they sat.’” Id. (quoting Carbo v.
United States, 364 U.S. 611, 617 (1961)); see also Braden, 410 U.S. at 496 (discussing legislative history
of the 1867 statute, and explaining that the territorial-jurisdiction clause was inserted in response to
criticism that the original bill “would permit ‘a district judge in Florida to bring before him some
men convicted and sentenced and held under imprisonment in the State of Vermont or in any of the
further States’” (quoting Cong. Globe, 39th Cong., 2d Sess., 730)). “Accordingly, with respect to
habeas petitions ‘designed to relieve an individual from oppressive confinement,’ the traditional rule
has always been that the Great Writ is ‘issuable only in the district of confinement.’” Padilla, 542 U.S.
at 442 (quoting Carbo, 364 U.S. at 618).
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The Supreme Court in Braden created an exception to the traditional “district of
confinement” rule, holding that challenges to future confinement may be brought against
prospective, or “legal,” custodians residing within the court’s jurisdiction despite the petitioner’s
absence from the district at the time. Braden, 410 U.S. at 495, 499-500. However, that exception and
the holding that the territorial-jurisdiction clause “requires nothing more than that the court issuing
the writ have jurisdiction over the custodian,” id. at 495, did not upend, as a practical matter, the
traditional “district of confinement” rule for “core” habeas challenges to present physical
confinement. Padilla, 542 U.S. at 444. As the Supreme Court explained in Padilla:
In habeas challenges to present physical confinement . . . the district of confinement is
synonymous with the district court that has territorial jurisdiction over the proper
respondent. This is because . . . the immediate custodian rule applies to core habeas
challenges to present physical custody. By definition, the immediate custodian and the
prisoner reside in the same district.
Id. Moreover, the Supreme Court in Padilla rejected the “long-arm approach to habeas jurisdiction,”
explaining that “Braden in no way authorizes district courts to employ long-arm statutes to gain
jurisdiction over custodians who are outside their territorial jurisdiction.” Id. at 445; see also id. at 444
(stating that Braden “did not indicate that a custodian may be served with process outside of the
district court’s territorial jurisdiction”). The Supreme Court therefore reaffirmed that “the
custodian’s absence from the territorial jurisdiction of the district court is fatal to habeas
jurisdiction.” Id. at 445 (citing Schlanger v. Seamans, 401 U.S. 487, 500 (1971)).
With all that said, there is a critical flaw with this action in its current form. As the only
named respondent is the warden of FMC Devens, and as Petitioner has been transferred to another
federal facility and is in the custody of a different warden, this action is now moot. See Jones v.
Cunningham, 371 U.S. 236, 241 (1963) (explaining that “the dispute between the petitioner and the
named respondent in each case had become moot because that particular respondent no longer held
the petitioner in his custody” (citing United States ex rel. Lynn v. Downer, 322 U.S. 756 (1944), United
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States ex rel. Innes v. Crystal, 319 U.S. 755 (1943), and Weber v. Squier, 315 U.S. 810 (1942))); see also Ex
Parte Endo, 323 U.S. 283, 305 (1944) (describing the holding in Crystal, 319 U.S. 755, where the
Supreme Court denied certiorari based on mootness because the petitioner was no longer in the
respondent’s custody); Copley v. Keohane, 150 F.3d 827, 830 (8th Cir. 1998). Here, as was true in
Crystal, “[o]nly an order directed to the warden of the [new facility] could effectuate his discharge.”
Ex Parte Endo, 323 U.S. at 305 (citing Crystal, 319 U.S. 755); see also Copley, 150 F.3d at 830 (“But at
this time Copley is not in the custody of anyone over whom we have jurisdiction, so there is no
entity that we can order to effect Copley’s release should the writ issue. The case thus is moot and
we will not consider Copley’s appeal.”).
Granted, the Supreme Court in Ex Parte Endo created an exception to this mootness rule for
cases in which the petitioner properly filed the habeas petition against the immediate custodian and
thereafter was transferred outside the district court’s territorial jurisdiction, but the exception only
applies “where a person in whose custody [the petitioner] is remains within the district.” Ex Parte
Endo, 323 U.S. at 306; see also Jones, 371 U.S. at 243-44 (“[A] District Court did not lose its
jurisdiction when a habeas petitioner was removed from the district so long as an appropriate respondent
with custody remained.” (emphasis added) (citing Ex Parte Endo, 323 U.S. at 304-307)); Copley, 150 F.3d
at 830 (“It is true that, if a district court has proper jurisdiction when a habeas petition is filed, as is
the case here, a subsequent transfer of the prisoner will not defeat habeas jurisdiction, but only ‘so
long as an appropriate respondent with custody remain[s]’ in the district.” (quoting Jones, 371 U.S. at
243-44)). In Ex Parte Endo, a case involving a Japanese-American citizen detained in California by
the War Relocation Authority (“WRA”), the Supreme Court explained that there was “no suggestion
that there is no one within the jurisdiction of the District Court who is responsible for the detention
of appellant and who would be an appropriate respondent.” Ex Parte Endo, 323 U.S. at 304. In fact,
the Supreme Court noted that it was specifically “advised by the Acting Secretary of the Interior that
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if the writ issues and is directed to the Secretary of the Interior or any official of the War Relocation
Authority (including an assistant director whose office is at San Francisco, which is in the jurisdiction of the District
Court), the corpus of appellant will be produced and the court’s order complied with in all respects.”
Id. at 304-05 (emphasis added); see Padilla, 542 U.S. at 440 (“We held that, under these circumstances,
the assistance director of the WRA, who resided in the Northern District [of California], would be
an ‘appropriate respondent’ to whom the District Court could direct the writ.”). It was on this basis
that the Supreme Court held the case was “not moot.” Ex Parte Endo, 323 U.S. at 305. Here, in
contrast, there is no indication that any official with custody over, or legal authority to release,
Petitioner remains in this district.
Moreover, while these two limits on habeas “jurisdiction” (the immediate-custodian and
territorial-jurisdiction rules) are not jurisdictional “in the sense of subject-matter jurisdiction,”
Padilla, 542 U.S. at 434 n.7; id. at 451 (Kennedy, J., concurring), and thus likely can be waived in
appropriate cases, the precise nature of these rules is not entirely clear. Id. at 453 (Kennedy, J.,
concurring) (“It is difficult to describe the precise nature of these restrictions on the filing of habeas
petitions, as an examination of the Court’s own opinions in this area makes clear.”). Still, regardless
of how these rules are characterized, the court must consider whether the named respondent has the
power to provide the relief sought. See Smith v. Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004) (“[W]hen a
habeas petitioner has failed to name the proper respondent pursuant to § 2242, we must ask sua
sponte whether the respondent who is named has the power to order the petitioner’s release. If not,
the court may not grant effective relief, and thus should not hear the case unless the petition is
amended to name a respondent who can grant the desired relief.”); see also Padilla, 542 U.S. at 441
(distinguishing between a court’s initial acquisition of jurisdiction over a petition and its ability to
grant habeas relief). As explained, Respondent does not presently have that power.

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The court also does not believe it is appropriate to sua sponte substitute Petitioner’s new
warden as the respondent, in light of the territorial-jurisdiction limitation. Cf. Ex Parte Endo, 323 U.S.
at 306 (“We only hold that the District Court acquired jurisdiction in this case and that the removal
of Mitsuye Endo did not cause it to lose jurisdiction where a person in whose custody she is remains within
the district.” (emphasis added)). There is a significant difference, in the court’s view, between a
respondent’s waiver of this limitation and a court’s decision to substitute as a respondent a custodian
located outside its territorial jurisdiction on its own accord. 5
The court’s decision that this action should not proceed here is also in the interest of justice.
See Padilla, 542 U.S. at 453 (Kennedy, J., concurring) (explaining that even “[w]hen an exception
applies . . . courts must still take into account the considerations that in the ordinary case are served
by” these habeas jurisdiction limitations). Petitioner is now located far from this court. And the
court is not prepared to say, based on the submissions, that an evidentiary hearing is unnecessary.
Thus, if this case were to proceed here, there is a real possibility that Petitioner would need to be
transported from South Dakota to Massachusetts. See Braden, 410 U.S. at 493-94, 500 (discussing
“traditional venue considerations,” including the location of witnesses and convenience of the
parties). The court also notes that if this action were to proceed here, it would likely be required to
apply the comparatively stringent First Circuit standard for invoking the common law “time at
liberty doctrine.” See Espinoza v. Sabol, 558 F.3d 83, 88-90 (1st Cir. 2009). Under these circumstances,
when the delay in adjudicating this case is in some respects attributable to the Government’s nonresponsiveness, the court does not believe it is appropriate for the Government to benefit from the
legal standards of the jurisdiction of Petitioner’s prior custodian.
Arguably, there has been no waiver here, as Petitioner was transferred after Respondent filed the motion to dismiss.
Moreover, the court does not believe one respondent may waive this territorial-jurisdiction limitation for a non-party.
This is not a case, for example, in which an appropriate respondent failed to raise this limitation in a case filed outside
the district where the respondent is located, perhaps concluding it would be more convenient to let the case go forward
in the chosen forum. Nor is this a case, as was true in Ex Parte Endo, where another potential respondent with power to
effectuate the writ is located in this district.
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The court recognizes that many courts have interpreted Ex Parte Endo much more broadly
than this court, holding that despite a petitioner’s transfer, the original court should retain
jurisdiction and decide the case, apparently regardless of whether an appropriate respondent remains
in the district. See, e.g., Wheeler v. Rivera, 2015 WL 7731473, at *2 n.2 (E.D. Ark. April 23, 2015)
(collecting cases). However, neither the First Circuit nor any district courts within this circuit, as far
as this court is aware, have adopted such a broad reading of Ex Parte Endo. 6 In contrast, two district
courts have reached the opposite conclusion, consistent with this court’s reading of the case law. See
Aitcheson v. Holder, Civil Action No. 15-11123-NGM, Dkt. No. 35 (D. Mass. Dec. 31, 2015); Johnson
v. Immigration and Customs Enforcement, 960 F. Supp. 2d 347, 349 (D.P.R. 2013). While this court can
imagine a situation in which it may be appropriate to retain jurisdiction after a petitioner is
transferred, this is not such a case. There is no indication that the transfer was an attempt by the
Government to manipulate the litigation. See Padilla, 542 U.S. at 441; Vasquez, 233 F.3d at 696. In
addition, as intimated, this is not a case in which the merits overwhelmingly favor the Government,
i.e., a “sure loser,” such that it would be a waste of time to adjudicate the action in another forum.
Cf. Phillips v. Seiter, 173 F.3d 609, 611 (7th Cir. 1999).
In the interest of efficiency, the court would be inclined to transfer this action to the
District of South Dakota, rather than dismiss it without prejudice. However, the court lacks the
authority to do so under the transfer statutes, all of which limit transfer to a district where the action
could have been brought when it was initially commenced. 28 U.S.C. §§ 1404(a), 1406(a), 1631; see
Hoffman v. Blaski, 363 U.S. 335, 342-44 (1960). When Petitioner filed the petition, of course, he could
have only brought the action in this district, as his immediate custodian was located here; South
Dakota was not an option. Nevertheless, dismissal without prejudice so Petitioner can refile in South

Such a broad reading of Ex Parte Endo also ignores the Supreme Court’s caveat, mentioned three separate times, that an
appropriate respondent remained within the Northern District of California and, thus, was within reach of the district
court’s process. Ex Parte Endo, 323 U.S. at 306-07.

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Dakota against an appropriate respondent should not significantly prejudice him. “There is no
statute of limitations for federal prisoners filing habeas petitions pursuant to 28 U.S.C. § 2241.”
Wooten v. Cauley, 677 F.3d 303, 306 (6th Cir. 2012); Morales v. Bezy, 499 F.3d 668, 672 (7th Cir. 2007);
see also Day McDonough, 547 U.S. 198, 202 n.1 (2006). Moreover, there is still time to adjudicate the
merits of Petitioner’s claim before his allegedly appropriate release date.

IV.

CONCLUSION

For these reasons, the court DISMISSES Petitioner’s petition for writ of habeas corpus
WITHOUT PREJUDICE to Petitioner refiling in the United States District Court for the District
of South Dakota against an appropriate respondent.
It is So Ordered.

_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge

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