Mair v. Anderson et al

Filing 7

REPORT AND RECOMMENDATION by Judge James C. England re 1 Petition for Writ of Habeas Corpus filed by Sherod Hastings Mair Objections to R&R due by 11/12/2009 (Elayer, Glenda)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHERN DIVISION SHEROD H. MAIR, Petitioner, v. MARTY ANDERSON, Warden, United States Medical Center for Federal Prisoners, Respondent. ) ) ) ) Civil Action ) No. 09-3251-CV-S-RED-H ) ) ) )

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Petitioner, an inmate confined in the United States Medical Center for Federal Prisoners, petitions this Court for a writ of habeas corpus in which he challenges his confinement. The petition has been referred to the undersigned for preliminary review under 28 U.S.C. § 636(b). Because the petition is not properly before this Court, it will be recommended that he be denied leave to proceed in forma pauperis. As grounds for relief in habeas corpus, petitioner alleges that he is a political prisoner who was set up on criminal charges; that he is being held under 18 U.S.C. § 4243, and would like to be released because he is medically compliant and has been a model prisoner; and that he is innocent of the charges. A review of the file and records in the case indicates that petitioner was committed to the custody of the Attorney General, pursuant to 18 U.S.C. § 4243(e), by the United States District Court for the Eastern District of North Carolina in 1998. Although he was conditionally released to the community in 1999, pursuant to 18 U.S.C. § 4243(f), he was arrested the next year and his

1

conditional release was revoked in the Eastern District of North Carolina.

He was again

conditionally released in 2002, which release was revoked in 2005 by the North Carolina district court. Regardless of petitioner's assertions, the law is clear that issues relating to his commitment must be resolved by the committing court. Archuleta v. Hedrick, 365 F.3d 644 (8th Cir. 2004). Accordingly, because this case is not properly before this Court, it must be recommended that the petition herein for writ of habeas corpus be dismissed without prejudice. For the foregoing reasons, it is, pursuant to the governing law and in accordance with Local Rule 72.1 of the United States District Court for the Western District of Missouri, RECOMMENDED that petitioner be denied leave to proceed in forma pauperis and that the petition herein for a writ of habeas corpus be dismissed without prejudice. /s/ James C. England JAMES C. ENGLAND Chief, United States Magistrate Judge

Date:

10/26/09

2