Cushing v. USA

Filing 3

ORDER DISMISSING PETITION WITHOUT PREJUDICE. Any appeal from this disposition would not be taken in good faith. Signed by Judge Richard F. Cebull on 5/14/2012. (TAG, )

FILED

MAY 14 2812
PATRICK E. DUffY CLeRK

BY

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uty""Ci9ikI:':r"--­
u.s. DISTRICT COURT
BILLINGS DIVISION

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
UNITED STATES OF AMERICA,
PlaintifflRespondent,
vs.
WILLIAM LORENZO CUSHING,
Defendant/Petitioner.

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Cause No. CR 10-63-BLG-RFC
CV 12-62-BLG-RFC

ORDER DISMISSING PETITION

On May 14,2012, Defendant Cushing, acting through counsel, filed a petition
for writ of habeas corpus under 28 U.S.C. § 2241 under this cause number.
Cushing's petition is so sparse on detail as to suggest counsel did not conduct
an investigation that was reasonable under the circumstances prior to filing. Ahabeas
petition under § 2241 is a civil action and cannot be filed as a motion in the criminal
case. A $5.00 filing fee is required, but it will be waived on this occasion.
It appears, however, by process of elimination, that Cushing is currently in
ORDER DISMISSING PETITION / PAGE 1

custody at FCI Phoenix in Arizona. Compare Br. in SUpp. of Pet. (doc. 2) at 2
(stating that Cushing is "slated for release in the fall ofnext year"), with BOP Inmate
Locator, http:www.bop.gov/iloc2/LocateInmate/j sp (accessed May 14,20 12) (entries
for "William Cushing"). That being so, Cushing names the incorrect Respondent, see
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) ("the default rule is that the proper

respondent is the warden of the facility where the prisoner is being held"), and there
is no personal jurisdiction under § 2241 in this District, id. at 450-51.
Because Cushing alleges no facts that could support a determination that
transfer to cure want ofjurisdiction would be in the interests ofjustice, 28 U.S.C. §
1631, dismissal without prej udice is appropriate.

Accordingly, IT IS HEREBY ORDERED:
1. The Clerk of Court shall moot the petition in the criminal case and open a
new civil case for this matter, naming Cushing as the Petitioner and the United States
as the putative Respondent.
2. The filing fee for the new civil matter is WAIVED.
3. Cushing's petition under 28 U.S.C. § 2241 is DISMISSED WITHOUT
PREJUDICE.
4. The Court CERTIFIES, pursuant to Fed. R. App. P. 24(a)(3)(A), that any

ORDER DISMISSING PETITION I PAGE

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appeal from this disposition would not be taken in good faith and Cushing should not
be permitted to prose~al in forma pauperis.
DATED this

I{ day of May, 2012.

Richard F. Cebull, Chief Judge
United States District Court

ORDER DISMISSING PETITION / PAGE 3