Jackson v. Berghuis
Filing
42
OPINION and ORDER Granting Petitioner's Emergency 38 MOTION to Stop Transfer During the Pendency of Habeas Corpus Proceedings and Directing Petitioner to file the 35 MOTION to Compel Meaningful Access to the Courts. Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOUGLAS JACKSON,
Petitioner,
v.
Civil No. 2:15-CV-11622
UNITED STATES DISTRICT JUDGE
GERSHWIN A. DRAIN
LES PARISH,
Respondent,
____________________________________/
OPINION AND ORDER GRANTING PETITIONER’S EMERGENCY
MOTION TO STOP TRANSFER DURING THE PENDENCY OF HABEAS
CORPUS PROCEEDINGS [#38] AND DIRECTING PETITIONER TO
REFILE THE MOTION TO COMPEL MEANINGFUL ACCESS TO THE
COURTS [#35].
Before the Court are Petitioner’s Motion to Compel Meaningful Access to the
Courts [#35], filed on September 13, 2018, and his Emergency Motion to Stop
Transfer During the Pendency of Habeas Corpus Proceedings [#38], filed on
September 27, 2018. For the reasons that follow, the Court will GRANT Petitioner’s
Emergency Motion to Stop Transfer During the Pendency of Habeas Corpus
Proceedings [#38]. However, the Court will direct Petitioner to refile the Motion to
Compel Meaningful Access to the Courts [#35].
A. The Emergency Motion to Prevent Transfer During the Pendency of
Habeas Corpus Proceedings is GRANTED.
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Petitioner asks the Court to stop Respondent from transferring Petitioner to a
different prison facility while his habeas petition is pending. The Court will grant
this request.
Federal Rule of Appellate Procedure 23(a) provides:
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.
Fed. R. App. P. 23(a). In light of this Rule, an order of the Court is normally
required for the transfer of a prisoner who has a pending habeas petition. See Fed.
R. App. P. 23(a); Cohen v. United States, 593 F.2d 766, 767, n. 2 (6th Cir. 1979).
In fact, Rule 23(a) “was designed in part to preserve the district judge’s power over
the physical custody of the petitioner by prohibiting the custodian from transferring
custody of the prisoner to another, without the authorization of the ‘court, justice or
judge rendering the decision.’” Jago v. U.S. Dist. Court, N. Dist. of Ohio, E. Div.
at Cleveland, 570 F. 2d 618, 626 (6th Cir. 1978). This suggests that a district court
judge retains jurisdiction to prohibit the transfer of a prisoner with a habeas
petition pending before the district court. See Jago, 570 F. 2d at 626.
Accordingly, the Emergency Motion to Prevent Transfer During Pendency of
Habeas Corpus Proceedings [#38] is GRANTED. Respondent shall not transfer
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Petitioner to another prison facility during the pendency of this petition unless he
first obtains permission from this Court.
B. The Court Directs Petitioner to Refile the Motion to Compel
Meaningful Access to the Courts.
Due to poor photocopy quality, the Court is not able to fully assess the claims
in Petitioner’s Motion to Compel Meaningful Access to the Courts [#35]. Thus, the
Court directs Petitioner to refile the Motion, making sure the entire Motion is legible
and written in dark ink.
IT IS SO ORDERED.
Dated:
October 29, 2018
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, October 29, 2018, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager
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