Holmes v. Thomas

Filing 42

MEMORANDUM OPINION AND ORDER re: 28 MOTION to Transfer Case Motion to Transfer or Dismiss the Petition filed by J.E. Thomas, 32 MOTION to Dismiss Respondent Sanford From The Habeas Corpus Action filed by Tina M. Stanford . The Court has considered all of the arguments of the parties. To the extent not specifically addressed above, the arguments are either moot or without merit. For the foregoing reasons, Respondent Stanford's motion to dismiss this action agains t Respondent Stanford is granted. Respondent Thomas's motion to transfer this petition to the Middle District of Pennsylvania is granted, and Respondent Thomas's motion to dismiss the petition is denied as moot. The Clerk is directed to close all pending motions and to transfer this action to the United States District Court for the Middle District of Pennsylvania. SO ORDERED. (Signed by Judge John G. Koeltl on 8/05/2014) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
CURTIS HOLMES,
Petitioner
14 Civ. 1248 (JGK)
- against MEMORANDUM OPINION AND
ORDER

J.E. THOMAS, ET AL.,
Respondents.
────────────────────────────────────
JOHN G. KOELTL, District Judge:

The petitioner, Curtis Holmes, has filed this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

The

petitioner seeks an order requiring the Bureau of Prisons
(“BOP”) to transfer him, temporarily, to a correctional facility
located within the geographic boundaries of New York State. The
respondent, J.E. Thomas, the Warden of the United States
Penitentiary in Lewisburg, Pennsylvania (“USP Lewisburg”) where
the petitioner is currently imprisoned, has moved to transfer
this petition to the Middle District of Pennsylvania where USP
Lewisburg is located, or alternatively to dismiss this action.
Tina M. Stanford, the Chairwoman of the Board of Parole of the
New York State Department of Corrections and Community
Supervision (“NYSDOC”) who has been added as a respondent, has
moved to dismiss the petition against her.

For the reasons

explained below, Stanford’s motion to dismiss her is granted and
the remaining petition is transferred to the Middle District of
Pennsylvania.
1

I.
On April 26, 2010, the petitioner pleaded guilty in this
Court to one count of conspiracy to commit robbery in violation
of 18 U.S.C. § 1951, and one count of using, carrying, and
brandishing a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii).
(Knepper Decl. at 3.)1

On September 8, 2010, this Court

sentenced the petitioner to a term of incarceration of 97 months
on the conspiracy count, and 84 months on the substantive count,
to run consecutively.

(Knepper Decl. at 3-4.)

The petitioner

is currently incarcerated at USP Lewisburg, and his projected
release date is March 21, 2022, (Knepper Decl. at 10.)
At the time of his arrest and conviction on the federal
charges, the petitioner was subject to parole supervision by New
York State.

On June 18, 2012, after the petitioner was

sentenced on the federal charges, the NYSDOC lodged a detainer
(the “detainer”) against the petitioner for violating the
conditions of his New York State parole.

(Pet. at Ex. A.)

The petitioner subsequently sought information about New
York State’s parole violation process from the NYSDOC.
to Pet. at Ex. B.)

(Supp.

By correspondence dated March 7, 2013, the

Because the attachments contained in the Knepper Declaration
are not consistently paginated, all references to the Knepper
Declaration are to the docket-stamped page numbers of the
Knepper Declaration.
2
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NYSDOC Regional Director informed the petitioner that the parole
violation process could commence when the petitioner was within
the geographic boundaries of New York State, irrespective of the
type or location of the correctional facility in which the
petitioner was incarcerated.

(Supp. to Pet. at Ex. B.)

The

petitioner then requested that the NYSDOC conduct his parole
violation hearing by a conference call.

(Knepper Decl. at 22.)

The NYSDOC denied the petitioner’s request because the
petitioner was not incarcerated within the geographic boundaries
of New York State.

(Knepper Decl. at 22.)

In early April 2013, the petitioner submitted a letter to
this Court requesting that the Court order that the BOP
temporarily transfer the petitioner to a correctional facility
in New York State, so that New York State could hold a parole
violation hearing in connection with the detainer.
Decl. at 21.)

(Knepper

In an Order dated April 9, 2013, this Court noted

that it was without authority to direct that the petitioner be
transferred to a correctional facility in New York State because
the authority to direct a transfer was committed to the
discretion of the BOP.

(Knepper Decl. at 20.)

The Court also

noted that the petitioner’s request appeared reasonable and
requested that the government forward the request to the BOP.
(Knepper Decl. at 20.)

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In a letter submitted to the Court on April 22, 2013, the
BOP represented that it could not transfer the petitioner to a
correctional facility in New York State because of the
petitioner’s high security classification and penitentiary
designation.

(Knepper Decl. at 24.)2

This petition followed.

II.
The petitioner filed this petition on June 17, 2013 in the
U.S. District Court for the Middle District of Pennsylvania, the
district in which USP Lewisburg is located.

(Pet. at 1.)

The

petition initially named USP Lewisburg Warden J.E. Thomas as the
sole respondent.

(Pet. at 1.)

In his petition, the petitioner requests that he be
temporarily transferred “to a holding facility within the
[j]urisdiction of New York.
conducted . . . .”

So that a Parole hearing [can] be

(Pet. at 5.)

The petitioner argues that

BOP’s failure to transfer him to a correctional facility in New
York State has prevented him from eliminating the detainer

The BOP also represented that the NYSDOC had informed the BOP
that the NYSDOC could not conduct a parole violation hearing
until the petitioner was available in person to the warrant
issued by NYSDOC. (Knepper Decl. at 24.) Although it appears
that the NYSDOC did instruct the BOP that it could not conduct a
parole violation hearing until the petitioner was released from
federal custody, (Knepper Decl. at 18), the NYSDOC Regional
Director has represented that a parole violation hearing will be
conducted while the petitioner remains in federal custody, if
the petitioner is transferred to a correctional facility within
the geographic boundaries of New York. (Pet’r’s Resp. at 6; see
also Supp. to Pet. at Ex. B; Knepper Decl. at 22.)
4
2

against him, and therefore increased his custody score and
deprived him of his right to participate in various treatment
and rehabilitation programs offered to federal inmates.
at 4-5.)

(Pet.

The petitioner contends that if transferred to a

facility in New York, and given a parole violation hearing, he
could eliminate the detainer by obtaining a judgment that would
run the remainder of his time under the parole supervision of
NYSDOC concurrently with the time he is currently serving
pursuant to his federal sentence.

(Pet. at 4-5.)

The

petitioner also requests in the alternative that the Court order
a video conference in order to allow the parties to conduct the
parole violation hearing without undue expense or delay.

(Pet.

at 5.)
On July 15, 2013, Judge Matthew Brann referred the petition
to Magistrate Judge Karoline Mehalchick for a report and
recommendation.

Magistrate Judge Mehalchick determined that the

petitioner was challenging the provisions of the detainer lodged
by NYSDOC and, accordingly, concluded that the petitioner’s
custodian was the New York State official who lodged the
detainer against him, rather than his federal warden.

Holmes v.

Thomas, No. 13cv1624, 2014 WL 691395, at *3 (M.D.P.A. Feb. 21,
2014).

Magistrate Judge Mehalchick therefore recommended that

the petition be transferred to this Court.

5

Id.

There were no objections to the Report and Recommendation and
Judge Brann adopted the Report and Recommendation in its
entirety and ordered that the petition be transferred to this
Court.

Id. at 1.

After reviewing the petition, this Court

ordered that the Board of Parole Chairwoman for the NYSDOC, Tina
Stanford, be added as a respondent.

(Order, ECF No. 14.)

The

Court then granted Respondent Thomas leave to file a motion to
transfer or dismiss the petition, and granted Respondent
Stanford leave to file a motion to dismiss the petition against
her.

(Orders, ECF Nos. 22, 26.)

III.
28 U.S.C. § 2241 provides that district courts may grant
habeas relief if a petitioner is “in custody in violation of the
Constitution or laws or treaties of the United States.”
U.S.C. § 2241(c)(3).

28

However, under § 2241(a), courts may grant

habeas relief only “within their respective jurisdictions.”
U.S.C. § 2241(a).

28

With respect to the pending motions, the

issue is whether this Court has jurisdiction over the
petitioner’s habeas petition.

The Supreme Court has explained

that, with respect to habeas petitions, the jurisdictional
inquiry requires, first, identifying the proper respondent to
the petitioner’s habeas petition, and, second, determining
whether jurisdiction over the relevant respondent is proper in
6

the court where the petition is pending.

See Rumsfeld v.

Padilla, 542 U.S. 426, 434 (2004).
A.
“[T]he proper respondent to a habeas petition is ‘the
person who has custody over the petitioner.’”

Padilla, 542 U.S.

at 434 (quoting 28 U.S.C. § 2242); see also Braden v. 30th Jud.
Cir. Ct. of Ky., 410 U.S. 484, 494-95 (1973); 28 U.S.C. § 2243
(writ of habeas corpus “shall be directed to the person having
custody of the person detained”).

“This custodian, moreover, is

the person with the ability to produce the prisoner’s body
before the habeas court.”

Padilla, 542 U.S. at 435 (citation

and internal quotation marks omitted).
“[L]ongstanding practice confirms that in habeas challenges
to present physical confinement-‘core challenges’-the default
rule is that the proper respondent is the warden of the facility
where the prisoner is being held, . . .”

Id.

“However, when a

federal prisoner challenges his future confinement by
challenging a state detainer, the federal warden is not ‘the
person who [holds] him in what [is] alleged to be unlawful
custody.’”

Graham v. Brooks, 342 F. Supp. 2d 256, 261 (D. Del.

2004) (alteration in original) (quoting Braden, 410 U.S. at 49495).

Rather, “the petitioner is deemed to be in custody of the

state officials lodging the detainer, at least for purposes of

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the habeas action.”

Id. (citing Padilla, 542 U.S. at 438;

Braden, 410 U.S. at 494-95).
In this case, it is not immediately clear on the face of
the petitioner’s habeas petition whether he seeks to challenge
his current confinement by the BOP or his future confinement by
the NYSDOC.

In the space on the form habeas petition for

indicating the issue with which the petition is concerned, the
petitioner indicated that his petition concerned “a parole
problem.” (Pet. at 2.)

When prompted to identify the ground

upon which he was being held unlawfully, the petitioner
identified the detainer lodged against him on the basis of his
parole violation.

(Pet. at 4.)

However, when prompted to

identify the parties who violated his rights, and at what time
and place his rights were violated, the petitioner discussed the
BOP’s denial of his request to transfer to a correctional
facility in New York for purposes of facilitating a parole
violation proceeding.

(Pet. at 4-5.)

Although these conflicting allegations might be read to
challenge the detainer lodged against the petitioner by the
NYSDOC, the relief requested in the petition, along with various
submissions made after the petition was transferred to this
Court, clarify that the petitioner is in fact challenging the
BOP’s denial of his request to be transferred to a correctional
facility in New York and not the validity of the NYSDOC
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detainer.

The petitioner does not seek to vacate the detainer

but rather to be transferred to a facility in New York so that
he can have a parole revocation hearing and be sentenced for
that alleged parole violation.
In his petition, the petitioner requests that he be
temporarily transferred “to a holding facility within the
[j]urisdiction of New York.
conducted . . . .”3

So that a Parole hearing [can] be

(Pet. at 5.)

The petitioner argues that the

BOP’s denial of his transfer request not only affects his
custody score, but also deprives him of access to various
programs offered to federal inmates.

(Pet. at 4-5.)

The

petitioner does not assert in his petition that the detainer
lodged against him by the NYSDOC is in any way invalid or
unlawful.

Instead, the petitioner asserts that he is entitled

to a parole violation hearing, at which he could proceed to
sentencing on the alleged parole violation in order to eliminate
the detainer.

(Pet. at 4-5.)

The petitioner’s responsive papers, submitted in connection
with the pending motions to transfer and to dismiss the
petition, confirm that the petitioner challenges the BOP’s
The petitioner also requests that the Court order a video
conference in order to allow the parties to conduct the
petitioner’s parole violation hearing without undue expense or
delay. (Pet. at 5.) However, the petitioner does not argue
that the NYSDOC’s refusal to conduct the petitioner’s parole
violation hearing by video conference, while the petitioner is
located outside of New York State, provides a basis for habeas
relief.
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3

denial of his request to transfer to a correctional facility in
New York, and does not challenge the validity of the detainer.
He seeks to be transferred to New York so that he can have a
hearing before the NYSDOC on the issue of his alleged parole
violation.

He has presented no argument that the detainer

itself is unlawful.

In his responsive papers, the petitioner

asserts that he has been placed at a disadvantage because the
BOP has denied him a transfer to a facility in New York.
(Pet’r’s Resp. at 3-4.)

The petitioner asks to be summoned to

this Court so that he can be housed in one of the inmate holding
facilities located in Manhattan, Brooklyn, or Queens, and a
parole violation hearing can be held.

(Pet’r’s Resp. at 4.)

He

notes that he was informed during his guilty plea in federal
court that the Assistant United States Attorney assigned to his
case “had contacted the state parole people and was trying to
ensure that the state parole penalty would run together with
[his] federal sentence.”

(Pet’r’s Resp. at 2.)

He also notes

that, before he entered his guilty plea, his attorney informed
him that his “parole time” would run concurrently with any time
spent serving his federal sentence.

(Pet’r’s Resp. at 2.)

Nowhere in the petitioner’s responsive papers does he offer any
argument that the detainer lodged against him by the NYSDOC is
invalid.4

4

The petitioner argues that, prior to the issuance of the NYSDOC
10

Additionally, the petitioner has submitted several letters
clarifying that his petition is directed at the BOP’s denial of
his request for a transfer.5

(See, e.g., Letter Attach. to

Order, ECF Nos. 15, 16, 23, 38, 40.)

For example, in his letter

dated July 1, 2014, the petitioner writes that “[t]he issue of
[his] motion . . . is based on the fact that the [S]tate of New
York Department of Correction and Community Supervision would
hold a Parole revocation hearing when [he is] within their
geographic boundaries . . . .”
No. 40.)

(Letter Attach. to Order, ECF

Indeed, in the letter the petitioner specifically

objects to the BOP’s refusal to transfer him to a correctional
facility in New York, alleging that “[t]he B.O.P. denied his
detainer, the BOP imposed its own detainer on him without
reason. (Pet’r’s Resp. at 2.) However, this claim only
underscores that the petitioner’s habeas challenge is directed
at the BOP, rather than the NYSDOC. The petitioner also notes
that he initially objected to his custody score on the ground
that seven points had been scored against him on the basis of
the detainer, which had not yet been lodged by the NYSDOC.
(Pet’r’s Resp. at 2.) It is plain that the petitioner’s initial
objection to his custody score was based on the detainer’s nonexistence, and cannot be construed as an objection to the
validity of the NYSDOC detainer once that detainer was lodged.
In one of the petitioner’s letters, the petitioner not only
objects to the BOP’s denial of his request for transfer, but
also requests that the Court resolve the issues associated with
the detainer by sentencing the petitioner on the detainer, or by
finding the detainer satisfied in light of time served by the
petitioner pursuant to his federal sentence. (Letter Attach. to
Order, ECF No. 15). This argument also indicates that the
petitioner does not challenge the validity of the detainer
lodged against him by the NYSDOC but rather seeks to be
sentenced for his alleged parole violation, but it is for the
New York State authorities to impose any sentence for a
violation of New York State parole.
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5

transfer to a facility within New York because of the Parole
detainer.”

(Letter Attach. to Order, ECF No. 40 (internal

quotation marks omitted); see also Letter Attach. to Order, ECF.
No. 23 (“The B.O.P. is deliberately see[k]ing to hinder my
process to the Parole Courts.”).
In light of the relief requested in the petitioner’s habeas
petition, the arguments made by the petitioner in response to
the pending motions, and the assertions contained in the
petitioner’s correspondence to this Court, it has become clear
that the petitioner is in fact challenging the BOP’s denial of
his request for a transfer to a correctional facility located
within New York State.

Accordingly, the petitioner’s habeas

petition is directed at his present physical confinement at USP
Lewisburg, and the proper respondent in this case is Respondent
Thomas.

See Padilla, 542 U.S. at 435 (“[L]ongstanding practice

confirms that in habeas challenges to present physical
confinement-‘core challenges’-the default rule is that the
proper respondent is the warden of the facility where the
prisoner is being held, . . .”).

Because the proper respondent

on this habeas petition is Respondent Thomas, the motion by
Respondent Stanford to dismiss the petition against her is
granted.

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B.
Because the petitioner challenges his present physical
confinement at USP Lewisburg, jurisdiction is proper only in the
judicial district within which USP Lewisburg is located.

See

id. at 443 (“[F]or core habeas petitions challenging present
physical confinement, jurisdiction lies in only one district:
the district of confinement.”)

USP Lewisburg is located in the

Middle District of Pennsylvania.
Pursuant to 28 U.S.C. § 1406(a), district courts have broad
discretion to transfer habeas cases to the appropriate judicial
district where the interest of justice so requires.

See, e.g.,

Tejeda v. Reno, No. 00cv6338, 2000 WL 1280969, at *2 (S.D.N.Y.
Sept. 11, 2000).

Transfer rather than dismissal best serves the

interest of justice because it enables more expeditious
consideration of a petitioner’s claims.

Tejeda, 2000 WL

1280969, at *2 (finding lack of jurisdiction to consider § 2241
petition and, pursuant to 28 U.S.C. § 1406, transferring
petition to the proper judicial district in the interest of
justice).6

In its most recent submission to this Court dated July 18, 2014,
Respondent Thomas points out that there is a procedure whereby a
federal prisoner can be temporarily transferred to state custody
to attend a parole hearing. However, this procedure requires an
application on behalf of a state or local court by a prosecutor
or other authority. See 28 C.F.R. § 527.30-31. In an
accompanying Order, this Court has appointed the petitioner’s
original trial counsel to represent him in connection with
attempting to use this procedure.
13
6

Accordingly, Respondent Thomas’s motion to transfer this
petition to the Middle District of Pennsylvania is granted and
Respondent Thomas’s motion to dismiss the petition is denied as
moot.
Conclusion
The Court has considered all of the arguments of the
parties.

To the extent not specifically addressed above, the

arguments are either moot or without merit.

For the foregoing

reasons, Respondent Stanford’s motion to dismiss this action
against Respondent Stanford is granted.

Respondent Thomas’s

motion to transfer this petition to the Middle District of
Pennsylvania is granted, and Respondent Thomas’s motion to
dismiss the petition is denied as moot.

The Clerk is directed

to close all pending motions and to transfer this action to the
United States District Court for the Middle District of
Pennsylvania.
SO ORDERED.
Dated:
New York, New York
August 5, 2014

____________/s/______________
John G. Koeltl
United States District Judge

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