Evans v. U.S. Marshal Service
Filing
50
OPINION AND ORDER adopting in part Report and Recommendations re 47 Report and Recommendations. Signed by Judge James L. Graham on 10/2/2018. (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. Marshals Service,
Respondent.
OPINION AND ORDER
In his petition for a writ of habeas corpus pursuant to 28
U.S.C. §2241, petitioner alleges that while serving a term of
incarceration
at
the
Ross
County
Correctional
Institute,
he
discovered that a detainer lodged by the U.S. Marshal’s Service had
been placed in his inmate records.
Petitioner claims that this
detainer is unauthorized and that it could have an adverse impact
on his future parole eligibility.
Plaintiff seeks an order that
the detainer be removed from his records, or that he be promptly
brought to trial on it. In response, respondent has indicated that
a notice of investigation was filed with the Inmate Records Office
on June 3, 2008, stating that respondent was investigating whether
petitioner posed a threat to anyone under respondent’s protection.
Respondent
stated
that
this
investigation
notice
was
not
a
detainer, as it was not based on an arrest warrant or indictment,
and that it did not request that petitioner be detained until he
could be taken into custody by another agency.
Petitioner
has
previously
filed
federal
habeas
actions
asserting this same claim. Most recently, petitioner filed a §2241
petition in this court.
See Evans v. Warden, Ross Corr. Inst.,
2:14-cv-1451 (S.D. Ohio).
This court dismissed that action,
holding that because petitioner could not establish that he was “in
custody” for purposes of §2241, this court lacked jurisdiction to
consider his claims.
The Sixth Circuit Court of Appeals affirmed
the dismissal of the petition, agreeing that petitioner was not “in
custody” based on the alleged detainer.
Evans v. Warden, Ross
Corre. Inst., No. 15-3374 (6th Cir. May 3, 2016).
See 2:14-cv-
1451, Doc. 16.
The instant action was initially filed in the District of
Columbia, and was transferred to this court on May 16, 2017.
The
case was then transferred to the Sixth Circuit Court of Appeals for
a determination as to whether the action should be permitted to
proceed as a second or successive petition. In a decision filed on
March 20, 2018, the Sixth Circuit held that petitioner did not need
to obtain permission to file a second or subsequent §2241 petition
and remanded the case for further proceedings.
See Doc. 44.
That
court also noted that although petitioner “now argues that the
detainer has been withdrawn, to the extent that a detainer exists,
he is not ‘in custody’ pursuant to it.”
Doc. 44, p. 4.1
Following remand, the magistrate judge issued a report and
recommendation on June 25, 2018.
The magistrate judge noted that
petitioner had submitted a notice of a change of address indicating
that he is now incarcerated in a facility located in Mahoning
County, Ohio, located in the Northern District of Ohio.
The
magistrate judge concluded that this court is no longer a proper
1
Shortly before the Sixth Circuit’s decision, an Ohio court
of appeals denied petitioner’s request for a writ of mandamus,
noting evidence that the alleged detainer had been removed from
petitioner’s inmate files. See State ex rel. Evans v. Mohr, No.
17AP-571 (10th Dist.), 2018 WL 1298914, *1 (Ohio App. March 13,
2018).
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forum for this action.
However, the magistrate judge recommended
that the petition be dismissed rather than transferred to the
Northern District, noting that the Northern District would have no
jurisdiction under §2241 over petitioner’s claims due to the Sixth
Circuit’s determination that petitioner is not “in custody” on the
alleged detainer.
I. Standard of Review
Petitioner
recommendation.
report
and
has
filed
objections
to
the
report
and
If a party objects within the allotted time to a
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).
II. Petitioner’s Objections
Petitioner’s objections primarily address the issue of whether
this action should be transferred to the Northern District of Ohio.
Petitioner argues that he should not have been transferred to an
institution in the Northern District while his appeal was pending.
He
further
argues
that
regardless
of
whether
this
case
is
transferred to the Northern District, his petition should be
addressed on the merits.
This court disagrees with the conclusion in the report and
recommendation that this district is no longer a proper forum.
Section 2241 provides in relevant part:
Where an application for a writ of habeas corpus is made
by a person in custody under the judgment and sentence of
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a State court of a State which contains two or more
Federal judicial districts, the application may be filed
in the district court for the district wherein such
person is in custody or in the district court for the
district within which the State court was held which
convicted and sentenced him and each of such district
courts shall have concurrent jurisdiction to entertain
the application.
28 U.S.C. §2241(d).
Although petitioner is now confined in
Mahoning County, in the Northern District of Ohio, he is in custody
by reason of his conviction in the Court of Common Pleas of Scioto
County, Ohio, located in the Southern District of Ohio.
See State
v. Evans, No. 05CA3002 (4th Dist. Scioto County), 2006 WL 1409812
(Ohio App. May 19, 2006). Under §2241(d), this district is a proper
forum for the litigation of this case.
See Brock v. Warden, Ross
Corr. Inst., No. 2:16–CV-843, 2018 WL 4442591, *2 (S.D.Ohio Sept.
18, 2018)(where petitioner is in custody in the Southern District
of Ohio and was convicted in the Northern District of Ohio, both
districts have jurisdiction over the habeas petition); Malone v.
Miller, No. 1:15-CV-1652, 2016 WL 7396005, *2-3 (N.D. Ohio Nov. 3,
2016)(venue
was
proper
in
the
Northern
District
of
Ohio,
irrespective of petitioner’s transfer to another institution,
because petitioner’s county of conviction was in the Northern
District of Ohio).
However,
petitioner’s
the
magistrate
habeas
claims
judge
should
correctly
be
concluded
dismissed
for
lack
jurisdiction under §2241 under the Law-of-the-Case Doctrine.
Keith v. Bobby, 618 F.3d 594, 599 (6th Cir. 2010).
that
of
See
The Sixth
Circuit has already determined, both in this case and in a previous
case involving the same parties and the same alleged detainer, that
petitioner is not “in custody” on the alleged detainer. This court
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is bound by that determination.
A district court does not have
jurisdiction to consider a case under §2241 unless a petitioner is
“in custody” under the conviction or sentence under attack at the
time his petition is filed or is under a consecutive sentence
imposed at the same time as the conviction or sentence under
attack. See Garlotte v. Fordice, 515 U.S. 39, 41 (1995); Maleng v.
Cook, 490 U.S. 488, 490-91 (1989).
Because petitioner cannot
satisfy the “in custody” requirement of §2241, his petition must be
dismissed.
III. Conclusion
Having reviewed the report and recommendation and plaintiff’s
objections in accordance with 28 U.S.C. § 636(b)(1) and Rule 72(b),
the court adopts the report and recommendation (Doc. 47) in part.
This action is dismissed due to lack of jurisdiction under §2241
because petitioner is not “in custody” on the alleged detainer.
The court also certifies pursuant to 28 U.S.C. §1915(a)(3) that an
appeal would not be in good faith and that an application to
proceed in forma pauperis would be denied.
The clerk is directed to enter final judgment dismissing this
case.
Date: October 2, 2018
s/James L. Graham
James L. Graham
United States District Judge
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