Dixon v. LeGrande et al

Filing 3

ORDER denying 1 -4 Motion for Change of Venue. Clerk shall TRANSFER this action to the Western Division of Southern District of Ohio, through its Dayton Divisional Office. Signed by Judge Howard D. McKibben on 4/3/13. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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WILLIAM ROBERT DIXON,
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Petitioner,

3:13-cv-00150-HDM-VPC

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vs.
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ORDER
ROBERT LEGRANDE, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2254 comes before the Court for initial review
under Rule 4 of the Rules Governing Section 2254 Cases.

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Petitioner was convicted in Ohio. He presently is incarcerated in Nevada, however, on

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the Ohio conviction perhaps pursuant to an interstate corrections compact. Following review,

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it appears that the matter should be transferred to the Southern District of Ohio without action

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on any submission other than the “motion for change of venue” that petitioner filed with the

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case in this district seeking to litigate the petition instead in this district.

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The papers submitted along with the online docket records of this Court and the
Southern District of Ohio reflect the following.

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Petitioner William Robert Dixon seeks to challenge his August 2006 Ohio state

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conviction, pursuant to a jury verdict of complicity to commit aggravated robbery, complicity

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to commit aggravated burglary, and complicity to commit felonious assault.

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On May 6, 2011, Dixon filed a federal habeas petition in No. 3:11-cv-00150-TMR-MJN

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in the Southern District of Ohio seeking to challenge the same judgment of conviction. That

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court dismissed the petition with prejudice on the merits on February 11, 2013. The district

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court denied a certificate of appealability. Petitioner has filed a notice of appeal that remains

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pending for consideration at this time in the Sixth Circuit.

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On or about March 19, 2013, Dixon mailed the present federal petition to the Clerk of

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this Court seeking to challenge the same judgment of conviction. In the “motion for change

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of venue” accompanying the petition, he “ask[s] Nevada to take federal jurisdiction.”

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Petitioner asserts that he was secretly moved to Nevada in November 2012 to protect him

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from “Ohio state” after “they made 3 attempts to kill me,” that the courts and police in Ohio

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lied, that the case is a “major conspiracy,” that he has evidence to “expose” the ruling in the

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Southern District of Ohio, that he is “under actual innocence,” that “the White House

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authenticated my passport alibi,” and that he and his family’s lives are in danger.1

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In Fest v. Bartee, 804 F.2d 559 (9th Cir. 1986), the Ninth Circuit held that a petition

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such as the present one by an out-of-state inmate held by Nevada authorities instead should

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be filed in a district in the state in which the conviction originated. The Court of Appeals relied

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upon Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973), which had held

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that an inmate in physical custody in one state could challenge his future custody under a

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detainer lodged by another state in a district court in the state that lodged the detainer. In

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Fest, the Ninth Circuit relied upon Braden for the propositions that: (a) a habeas petition can

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be brought in the court with jurisdiction over the prisoner or his custodian, referring broadly

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to the officer legally responsible for the prisoner’s incarceration rather than to his immediate

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physical custodian; and (b) the physical presence of the prisoner is not necessary for habeas

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corpus jurisdiction as long as the court has jurisdiction over the person holding the prisoner,

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once again referring broadly to the officer legally responsible for the custody rather than the

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immediate custodian. See 804 F.2d at 560. If Fest remains good law, this Court clearly has

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the authority to transfer the action to the Southern District of Ohio, and, indeed, under the

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Ninth Circuit’s holding, it not only can do so but should do so.

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#1-4.

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As Judge Dawson with this Court noted in Gustafson v. Williams, No. 2:09-cv-01225,

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2010 WL 1904518 (May 10, 2010), the subsequent decisions in Rumsfeld v. Padilla, 542 U.S.

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426 (2004), and Rasul v. Bush, 542 U.S. 466 (2004), introduce a measure of doubt as to

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whether Fest remains good law. After extensively reviewing the potential interaction between

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the two Supreme Court decisions and Fest, Judge Dawson ultimately concluded that the

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Court should follow “the apposite and otherwise controlling precedent from this Circuit rather

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than the conflicting implications from the discussions in Rasul and Padilla by a Supreme Court

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that was focused upon a markedly different context.” Id., at *3. He accordingly transferred

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the matter to the federal district in the state where the petitioner was convicted, “where

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common sense would indicate that the challenge to petitioner’s . . . conviction would best be

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litigated.” Id.; see also id., at *1 & n.2 (discussing in particular the convenience of the parties

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and witnesses and the interests of justice).

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The undersigned concurs with Judge Dawson’s analysis in Gustafson and will follow
it here.

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In this case, Dixon already has taken the opportunity in the “motion for change of

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venue” to present his argument as to why venue should be maintained in this district. To any

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extent that petitioner has an arguendo non-fanciful concern as to the physical safety of

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himself and others, the venue in which this successive habeas petition is litigated will not have

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any necessary impact on anyone’s physical security, one way or the other. To the extent that

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petitioner has concerns with the district court’s decision in No. 3:11-cv-00150 in the Southern

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District of Ohio, petitioner must seek relief in the courts that have jurisdiction to review the

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decisions of that court and/or in that court. This Court is not an appropriate forum within

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which to air petitioner’s disagreement with the decision of a coordinate federal district court.

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The convenience of the parties and witnesses and the interests of justice otherwise are

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best served by the litigation of all issues arising on this facially successive and untimely

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petition challenging the Ohio conviction in the Southern District of Ohio.

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Petitioner’s “motion for change of venue,” as a request to maintain venue in this district

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accordingly will be denied; and the Court will transfer this matter to the Southern District of
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Ohio. Other than the foregoing motion, the Court does not rule on any other submissions,

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including the pauper application, in deference to the transferee court’s case management

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decisions following the transfer. For substantially the same reason, the Court does not

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address the matter of the appropriate respondent in the event that the matter arguendo were

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to proceed to service in the Southern District of Ohio. See generally Gustafson, slip op. at

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*2 & *3 n.6 (discussion of proper respondent issues).

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IT THEREFORE IS ORDERED that petitioner’s motion (#1-4) styled as a “motion for
change of venue,” construed as a request to maintain venue in this district, is DENIED.

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IT FURTHER IS ORDERED that the Clerk of Court shall TRANSFER this action to the

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Western Division of the Southern District of Ohio, through its Dayton Divisional Office and/or

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in such manner as is consistent with current practice on the courts’ electronic docketing

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systems for such transfers.2
DATED: April 3, 2013.

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___________________________________
HOWARD D. MCKIBBEN
United States District Judge

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See http://www.ohsd.uscourts.gov/clerksoffice/dayton.htm.

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