Vermett v. Brown

Filing 4

OPINION AND ORDER TRANSFERRING emergency petition for writ of habeas corpus to the Western District of Michigan. Signed by District Judge Nancy G. Edmunds. (DPer)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT VERMETT,
Petitioner,
Case No. 2:20-CV-11333
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE

v.

MIKE BROWN,
Respondent,
____________________________________/
OPINION AND ORDER TRANSFERRING THE EMERGENCY PETITION FOR WRIT
OF HABEAS CORPUS TO THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
Robert Vermett, (“petitioner”), presently confined at the Kinross Correctional Facility in
Kincheloe, Michigan, filed a an emergency petition for writ of habeas corpus in this district
pursuant to 28 U.S.C. § 2241. Petitioner also seeks injunctive relief and a temporary restraining
order. In his application, petitioner seeks to be released from prison on the life sentence he is
serving because of the Coronavirus pandemic and his fear that he might contract the disease, in
spite of the efforts taken by the Michigan Department of Corrections to prevent the spread of
Coronavius in the prisons. In the interests of justice, the Court concludes that the proper venue for
this petition is in the Western District of Michigan and orders that the petition be immediately
transferred to that district.
I. DISCUSSION
“Writs of habeas corpus may be granted by . . . the district courts and any circuit judge
within their respective jurisdictions.” 28 U.S.C. § 2241(a). “The federal habeas statute
straightforwardly provides that the proper respondent to a habeas petition is ‘the person who has

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custody over [the petitioner].’” Rumsfeld v. Padilla, 542 U.S. 426, 434–35 (2004)(quoting 28
U.S.C. § 2242); see also 28 U.S.C. § 2243 (“The writ, or order to show cause shall be directed to
the person having custody of the person detained”).
Petitioner does not challenge his conviction in this petition but rather the conditions of his
confinement, namely, the risk that petitioner might contract Coronavirus while incarcerated.
Petitioner seeks immediate release from custody, claiming that none of the precautions taken by
the Michigan Department of Corrections to protect the prisoners from contracting the disease are
sufficient to prevent the spread of the disease.
When a habeas petitioner challenges his or her present physical confinement, the only
proper respondent is the warden of the facility where the petitioner is being held. See Gilmore v.
Ebbert, 895 F.3d 834, 837 (6th Cir. 2018)(citing to Rumsfeld, 542 U.S. at 435).
For the convenience of parties and witnesses, in the interests of justice, a district court may
transfer any civil action to any other district or division where it might have been brought. See
Weatherford v. Gluch, 708 F. Supp. 818, 819-820 (E.D. Mich. 1988)(Zatkoff, J.); 28 U.S.C. §
1404(a). When venue is inappropriate, a court may transfer a habeas petition to the appropriate
federal district court sua sponte. See Verissimo v. I.N.S., 204 F. Supp. 2d 818, 820 (D.N.J. 2002).
Petitioner is currently incarcerated at the Kinross Correctional Facility in Kincheloe,
Michigan, which is located the Western District of Michigan. Petitioner does not directly
challenge his conviction but instead challenges the conditions of his confinement related to the
risks associated with the Coronavirus. A habeas petition filed in the district court in the district of
petitioner’s confinement is the proper means of testing the conditions of petitioner’s confinement.
See Coates v. Smith, 746 F.2d 393, 395 (7th Cir. 1984); See also Barrera v. Decker, No. 20-CV2755 (VEC), 2020 WL 1686641, at *1 (S.D.N.Y. Apr. 7, 2020)(district court in the Southern

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District of New York lacked venue over habeas petitioner’s claim that his health condition put him
at imminent risk of contracting COVID-19, where the petitioner was incarcerated in New Jersey).
Venue is improper in this district. The Court orders that the case be transferred to the
Western District of Michigan. “Given the significant liberty interests at stake, the time-sensitivity
of Petitioner’s claims, and the risks to Petitioner’s health posed by the rapid spread of COVID19,” the Court “directs the Clerk to effectuate the transfer as soon as possible.” Barrera v. Decker,
2020 WL 1686641, at * 1.
II. ORDER
Accordingly, the Court ORDERS the Clerk of the Court to transfer this case to the United
States District Court for the Western District of Michigan pursuant to 28 U.S.C. § 1404(a).

Dated: June 2, 2020

s/ Nancy G. Edmunds_____________________
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE

I certify that a copy of this Order was served upon all counsel of record on June 2, 2020,
by electronic and/or ordinary mail.
s/ L. Bartlett
Case Manager

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