Hardy v. Birkett

Filing 20

ORDER denying 18 Motion for Transfer/Writ of Mandamus. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID CALVIN HARDY, # 159525,
Petitioner,
v.

Case Number: 10-CV-14310
Honorable George Caram Steeh

THOMAS BIRKETT,
Respondent.
____________________________________/
ORDER DENYING MOTION FOR
TRANSFER (MOTION/BRIEF FOR WRIT OF MANDAMUS (DKT. # 18))
This is a habeas case filed under 28 U.S.C. § 2254. Pending before the Court is Petitioner
David Calvin Hardy’s “Motion/Brief for Writ of Mandamus.” (Dkt. # 18). The Court construes the
motion as a motion to be transferred. For the reasons stated, the Court will deny the motion.
Hardy commenced the instant action while incarcerated at the Mid-Michigan Correctional
Facility. He states that he was transferred to the Chippewa Correctional Facility in violation of
Federal Rule of Appellate Procedure 23(a) and requests to be returned to the Mid-Michigan
Correctional Facility.
Federal Rule of Appellate Procedure 23(a) states:
(a) Transfer of Custody Pending Review. Pending review of a decision in a habeas
corpus proceeding commenced before a court, justice, or judge of the United States
for the release of a prisoner, the person having custody of the prisoner must not
transfer custody to another unless a transfer is directed in accordance with this rule.
When, upon application, a custodian shows the need for a transfer, the court, justice,
or judge rendering the decision under review may authorize the transfer and
substitute the successor custodian as a party.
By its own terms, Rule 23(a) applies to the transfer and custody of prisoners “pending review
of a decision in a habeas corpus proceeding.” No decision has been made on Hardy’s habeas claim

in this Court and no appeal is pending. Rule 23(a) simply does not apply to his situation. See Evans
v. Luoma, 2006 WL 2471938 (E.D. Mich. Aug. 24, 2006); Mitchell v. McCaughtry, 291 F.Supp.2d
823, 835 (E.D. Wis. 2003). Therefore, Hardy’s motion is DENIED. (Dkt. # 18).
Dated: June 6, 2011
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 6, 2011, by electronic and/or ordinary mail and also to David
Hardy at Chippewa Correctional Facility, 4269 W. M-80, Kincheloe,
MI 49784.
S/Josephine Chaffee
Deputy Clerk

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