Evans v. U.S. Marshal Service

Filing 36

ORDER adopting Report and Recommendations re 32 Report and Recommendations.. Signed by Judge James L. Graham on 10/19/2017. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
William H. Evans, Jr.,
Petitioner,
v.

Case No. 2:17-cv-424

U.S. Marshal Service,
Respondent.
ORDER
This is an action for a writ of habeas corpus under 28 U.S.C.
§2241 brought by William H. Evans, Jr., a state inmate currently
serving

a

sentence

Institution.

of

incarceration

at

Ross

Correctional

Petitioner seeks removal of a detainer allegedly

placed against him by the U.S. Marshal’s Service in the District of
Columbia on July 11, 2008.

Petitioner alleges that this detainer

will prevent his release from state custody. Petitioner originally
filed the instant action in the United States District Court
for the District of Columbia.

On April 11, 2016, that court

concluded that it lacked jurisdiction over the petition because
petitioner is confined in Ohio, and transferred the above action to
the Southern District of Ohio.

See Docs. 17 and 18.

On October

10, 2017, the magistrate judge filed a report and recommendation
recommending that this action be dismissed.

The magistrate judge

also issued an order denying petitioner’s motion to change venue
back to the District of Columbia.
This

matter

is

before

the

court

for

consideration

of

plaintiff’s objections (Docs. 33, 34, and 35) to the magistrate
judge’s report and recommendation.

If a party objects within the

allotted time to a report and recommendation, the court “shall make

a

de

novo

determination

of

those

portions

of

the

report

or

specified proposed findings or recommendations to which objection
is made.”

28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b).

Upon review, the Court “may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate
judge.”

28 U.S.C. § 636(b)(1).

As the magistrate judge noted, petitioner challenged the
alleged detainer in a previous §2241 petition filed in this court.
See William Evans, Jr. v. Warden, Ross Correctional Inst., 2:14-cv1451.

This court concluded that the lodging of a detainer did not

place

petitioner

“in

custody”

for

jurisdiction on this court under §2241.
Doc. 8, p. 6.

purposes

of

conferring

Case No. 2:14-cv-1451,

In a decision filed on May 3, 2016, the Sixth

Circuit Court of Appeals agreed that petitioner was not “in
custody” based on the detainer and affirmed the dismissal of the
petition.

See William Evans, Jr. v. Warden, Ross Correctional

Inst., Case No. 15-3373 (6th Cir. May 3, 2016), Case No. 2:14-cv1451, Doc. 16.
The

magistrate

judge

concluded

that

this

court

lacks

jurisdiction to consider the instant petition on the same ground
previously upheld by the Sixth Circuit, namely, because petitioner
is not “in custody” for purposes of §2241 by reason of the
detainer.

This court agrees that it does not have jurisdiction to

entertain the instant action.

However, the magistrate judge also

noted that the instant action constitutes a second or successive
habeas corpus petition, and that the Sixth Circuit has held that
the provisions of 28 U.S.C. §2244 restricting the filing of
successive petitions apply to petitions filed under §2241.

2

See

Rittenberry v. Morgan, 468 F.3d 331, 336 (6th Cir. 2006).

The

court concludes that the petition should be transferred to the
Sixth Circuit Court of Appeals as a second or successive petition.
The court sees no basis for vacating the magistrate judge’s
order denying petitioner’s motion to transfer venue back to the
District of Columbia.

The determination of the District of

Columbia court that venue is proper in the Southern District of
Ohio is the law of the case.

In any event, this court agrees with

District of Columbia court that venue under §2241 is proper in the
Southern District of Ohio.
Petitioner

has

filed

objections

to

the

report

and

recommendation, and moves for a declaratory judgment that the
detainer has been withdrawn or was never valid.

However, this

court also lacks jurisdiction to enter a declaratory judgment.
Nothing in petitioner’s objections convinces this court that the
magistrate judge’s conclusions and discussion of the law applicable
to this case were erroneous.
III. Conclusion
Having reviewed the report and recommendation, the court finds
that petitioner’s objections are without merit.

For the foregoing

reasons, the court overrules petitioner’s objections and adopts the
magistrate judge’s report and recommendation (Doc. 32).

This

action is transferred to the Sixth Circuit Court of Appeals as a
second or successive petition.

Date: October 19, 2017

s/James L. Graham
James L. Graham
United States District Judge

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