Tibbs v. Brown

Filing 7

OPINION AND ORDER TRANSFERRING CASE to the Western District of Michigan. Signed by District Judge Judith E. Levy. (DPer)

Case 5:20-cv-11665-JEL-DRG ECF No. 7 filed 06/29/20

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES EDWARD TIBBS,
Petitioner,
v.

Case No. 5:20-CV-11665
Hon. Judith E. Levy
United States District Judge

MIKE BROWN,
Respondent,
___________________________/
OPINION AND ORDER TRANSFERRING THE PETITION FOR
WRIT OF HABEAS CORPUS TO THE UNITED STATES
DISTRICT COURT FOR THE WESTERN DISTRICT OF
MICHIGAN [1]
Charles Edward Tibbs, (“petitioner”), presently confined at the
Kinross Correctional Facility in Kincheloe, Michigan, filed a petition on
June 9, 2020 for writ of habeas corpus in this district pursuant to 28
U.S.C. § 2241. In his pro so application, petitioner seeks to be released
from prison on the life sentence that he is serving out of the Genesee
County Circuit Court for the crime of first-degree criminal sexual
conduct,1 based on the Coronavirus pandemic and his concern that he
The Court obtained some of the information concerning the petitioner’s
conviction from the Michigan Department of Corrections’ Offender Tracking
Information System (OTIS), which this Court is permitted to take judicial notice of.
See Ward v. Wolfenbarger,323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004).
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might contract the disease, in spite of efforts undertaken by the Michigan
Department of Corrections to prevent the spread of Coronavirus 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 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, alleging that none of the precautions
taken by the Michigan Department of Corrections to protect the prisoners

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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 federal
court in the district of a habeas petitioner’s confinement is the proper

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means of testing the conditions of the petitioner’s confinement. See
Coates v. Smith, 746 F.2d 393, 395 (7th Cir. 1984); See also Perry v.
Washington, No. 2:20-CV-11478, 2020 WL 3077592, at * 1 (E.D. Mich.
June 10, 2020) (district court in the Eastern District of Michigan 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 at a prison located in the Western District of Michigan).
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, as well as the risks to petitioner’s
“health posed by the rapid spread of COVID-19,” the Court “directs the
Clerk to effectuate the transfer as soon as possible.” Perry v. Washington,
2020 WL 3077592, at * 2.
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).

IT IS SO ORDERED.

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Dated: June 29, 2020
Ann Arbor, Michigan

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s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on June 29, 2020.
s/Kristen MacKay

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