Evans v. U.S. Marshal Service

Filing 47

ORDER and REPORT AND RECOMMENDATION - It is RECOMMENDED that Petitioner's petition for a writ of habeas corpus be DENIED and that this action be DISMISSED without prejudice. Further, Petitioner's Motion to Re-open Th is Case, 46 , is DENIED ( Objections to R&R due by 7/9/2018). Signed by Magistrate Judge Chelsey M. Vascura on 6/25/2018. (daf)(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.,
CASE NO. 2:17-CV-424
JUDGE JAMES L. GRAHAM
Magistrate Judge Chelsey M. Vascura

Petitioner,
v.
U.S. MARSHALS SERVICE,
Respondent.

ORDER and REPORT AND RECOMMENDATION
Petitioner, a state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The matter is before the Court for consideration of the Petition (ECF No. 1), Respondent’s
Return (ECF No. 10), Petitioner’s Traverse (ECF No. 14), Petitioner’s Supplement to his
Traverse (ECF No. 16), and the exhibits filed by the parties. For the reasons that follow, it is
RECOMMENDED that the petition for a writ of habeas corpus be DENIED and this action be
DISMISSED without prejudice.
Also before the court is Petitioner’s Motion to Re-open This Case. (ECF No. 46). That
motion is DENIED in light of this Order and Report and Recommendation.
Facts and Procedure
This is Petitioner’s fourth federal habeas action. Petitioner previously filed two actions
under § 2241, one in the Eastern District of Virginia and one in the District of Columbia, which
were both transferred to this Court’s Western Division where they were dismissed for failure to
prosecute. See Evans v. United States Marshals Service, No. 1:15-cv-677, S.D. Ohio; Evans v.
United States Marshals Service, No. 1:14-cv-00912, S.D. Ohio. Petitioner also filed a third
action under § 2241 in this Court’s Eastern Division on September 4, 2014. Evans v. Warden,

Ross Corr. Inst., 2:14-cv-01451, S.D. Ohio. That action was dismissed because Petitioner could
not establish that he was “in custody,” and thus, this Court lacked jurisdiction to entertain his
habeas claims. The Sixth Circuit Court of Appeals affirmed that decision. Evans v. Warden,
Ross Corr. Inst., Case No. 15-3373, 2016 U.S. App. Lexis 23981, at *5 (6th Cir. May 3, 2016).
Petitioner filed the instant action in the District of Columbia on October 1, 2015, before it
was transferred to this Court on May 16, 2017. (ECF Nos. 1, 27.) Like its predecessors, the
current petition alleges that Petitioner was incarcerated at Ross County Correctional Institute
(“RCCI”). (ECF No. 1, at PAGE ID #1.) Like the others, this petition alleges that in January of
2014, while he was incarcerated at RCCI, Petitioner discovered that a detainer lodged by
Respondent had been placed in his Ohio Department of Rehabilitation and Correction (“ODRC”)
inmate records on July 11, 2008. (ECF No. 1, at PAGE ID # 1.) In every case, Petitioner alleges
that the detainer is unauthorized and that it could have an adverse impact on his future parole
eligibility. (See ECF No. 16, at PAGE ID # 84.) Petitioner asks this Court to order that the
detainer be removed from his records or that he be promptly brought to trial on it. (ECF No. 1,
at PAGE ID # 3.)
Respondent asserts that on June 3, 2008, it filed a notice of investigation with the Inmate
Records Office at RCCI indicating that Respondent was investigating whether Petitioner posed a
threat to anyone under Respondent’s protection. (ECF No. 10-2, at PAGE ID # 44.) Respondent
further asserts that the investigation notice is not a detainer as the term is commonly understood
because it is not based on an arrest warrant or an indictment in another case, nor does it request
that Petitioner be detained until he can be taken into custody by another agency. Id.
On October 19, 2017, this Court transferred the instant action to the Sixth Circuit so that
Petitioner could seek authorization to file a successive petition. (ECF No. 36.) On March 21,

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2018, the Sixth Circuit remanded this matter for further proceedings, explaining that unlike a
petitioner who seeks relief under 28 U.S.C. § 2254, a petitioner who seeks relief under § 2241 is
not required to obtain authorization for a successive petition. ECF No. 44, In re William H.
Evans, No. 17-4105, (6th Cir. March 20, 2018). The Sixth Circuit further explained that
although Petitioner argued on appeal that the investigation notice/detainer has been withdrawn,
“to the extent that a detainer exists, Petitioner is not ‘in custody’ pursuant to it.” Id. (citing
Evans, 2016 U.S. App. Lexis 23981, at *5).
On April 13, 2018, Petitioner filed a Notice of Change of Address, indicating that he had
been transferred from RCCI to a facility located in Mahoning, County, Ohio. (ECF No. 45.) On
April 23, 2018, Petitioner filed a Motion to Re-open This Case in light of the Sixth Circuit’s
remand. (ECF No. 46.)
Law and Analysis
Petitioner has been transferred to a facility in Mahoning County, Ohio, which is located
in the Northern District of Ohio. A court only has jurisdiction over a habeas corpus petition,
however, if it has personal jurisdiction over the petitioner’s custodian. Braden v. 30th Judicial
Circuit Court of Kentucky, 410 U.S. 484, 494–95 (1973) (“the writ of habeas corpus does not act
upon the prisoner who seeks relief but upon the person who holds him in what is alleged to be
unlawful custody”); Jenkins v. United States, 4 F. App’x 241, 242 (6th Cir. 2001) (upholding
dismissal of a § 2241 petition because district court did not have personal jurisdiction over the
petitioner’s custodian.) This Court does not possess personal jurisdiction over the facility in
Mahoning County where Petitioner is currently incarcerated. For that reason, the Undersigned

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concludes that the Southern District of Ohio is no longer the proper forum for this action.1
Nevertheless, the Undersigned RECOMMENDS that this action be DISMISSED without
prejudice instead of transferred to the Norther District pursuant to 28 U.S.C. § 1406(a) because
Petitioner’s habeas action fails no matter where it is adjudicated.
The federal habeas statute states that “the writ of habeas corpus shall not extend to a
prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C § 2241(c)(3) (emphasis added). Accordingly, a district court does not
have jurisdiction to consider a case unless a petitioner is “in custody” under the conviction or
sentence under attack at the time his petition is filed, Maleng v. Cook, 490 U.S. 488, 490–91
(1989), or is under a consecutive sentence imposed at the same time as the conviction or
sentence under attack, Garlotte v. Fordice, 515 U.S. 39, 41 (1995). In addition, the law–of–the–
case doctrine provides that “‘a decision made by a court at one stage of a case should be given
effect in successive steps of the same litigation.’” Keith v. Bobby, 618 F.3d 594, 599 (6th Cir.
2010) (quoting United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990). This doctrine renders a
determination by a court of appeals binding upon a district court in subsequent stages of the same
litigation, and thus generally bars district courts from reconsidering issues that courts of appeals

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Petitioner named the USMS as the Respondent in this habeas action rather than his physical
custodian. Nevertheless, Petitioner does not claim that the USMS either has or would ever take
custody of him pursuant to the notice of investigation/detainer. Instead, Petitioner alleges that
his current custodian may delay his release at a parole hearing because of the investigation
notice/detainer. Technically, that appears to be a claim that should have been made against
Petitioner’s custodian. On the other hand, Petitioner does claim that USMS wrongfully lodged a
detainer against him and he asks that this Court order the USMS to remove it. Although such
relief might be available in an action against the USMS for mandamus, such relief is simply not
available under the habeas statutes. Indeed, a number of procedural complexities in this case
appear to stem from the fact that Petitioner has asserted a habeas claim against the wrong party,
or made a claim against the correct party but under the wrong legal theory.
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have explicitly or impliedly resolved. Id. (citing United States v. Haynes, 468 F.3d 422, 426 (6th
Cir. 2006)).
In this litigation, the Sixth Circuit has explicitly determined that Petitioner is not “in
custody” pursuant to the investigation notice/detainer. (ECF No. 44, at PageID # 228.) Under
the law-of-the-case doctrine, this Court is, and a transferee court would be, bound by that
determination. Because Petitioner cannot establish that he is in custody pursuant to the
investigation notice/detainer, this Court does not have, and a transferee court would not have
jurisdiction over Petitioner’s habeas action. It is therefore, RECOMMENDED that the petition
be DENIED and that this action be DISMISSED without prejudice.
The recommendation to dismiss is bolstered by the fact that Petitioner’s claim appears to
have been has been mooted. While litigating this matter in the Sixth Circuit Court of Appeals,
Petitioner alleged that he had caused the detainer to be withdrawn from his inmate records by
filing an action for mandamus in the Ohio courts. See In re William Evans, 17-4105, Sixth
Circuit Court of Appeals, October 30, 2017, Doc. 4-2, at page 5. And indeed, on March 13,
2018, an Ohio appellate court denied Petitioner’s action for mandamus because the ODRC had
already removed any federal detainers that it had listed in its files for Petitioner. State ex rel.
Evans, 2018 WL 1298914, at *1.
Conclusion
For the foregoing reasons, the Undersigned RECOMMENDS that Petitioner’s petition
for a writ of habeas corpus under § 2241 be DENIED and that this action be DISMISSED
without prejudice. Further, Petitioner’s Motion to Re-open This Case, ECF No. 46, is
DENIED in light of this Order and Report and Recommendation.
IT IS SO ORDERED.

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/s/ Chelsey M. Vascura___
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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