Bauer v. U.S. Attorney General

Filing 3

REPORT AND RECOMMENDATIONS re 2 Petition for Writ of Habeas Corpus filed by Frederick W Bauer - The Petition should therefore be dismissed without prejudice to its refiling in the proper United States District Court, the Eastern District of Texas. Objections to R&R due by 5/24/2013. Signed by Magistrate Judge Michael R Merz on 05/07/13. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
FREDERICK W. BAUER,
Petitioner,

:

Case No. 3:13-cv-142

- vs -

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

U. S. ATTORNEY GENERAL,
Respondent.

:

REPORT AND RECOMMENDATIONS
This habeas corpus case was brought pursuant to 28 U.S.C. § 2241 by Petitioner
Frederick W. Bauer. Bauer avers that he is in federal custody at the Federal Correctional Center
in Texarkana, Texas (Petition, Doc. No. 1-1, PageID 4, ¶ 2.) He was sentenced to his current
term of imprisonment by the United States District Court for the Western Division of Wisconsin
at Madison in January, 1988, and April, 1989. Id. at ¶ 4.
The Petition should be dismissed without prejudice because the Attorney General of the
United States is not the proper party respondent and this Court therefore does not have authority
to grant a habeas corpus petition dealing with Petitioner’s imprisonment in Texas.
28 U.S.C. § 2241(a) provides “[w]rits of habeas corpus may be granted by the Supreme
Court, any justice thereof, the district courts and any circuit judge within their respective
jurisdictions.” This provision of law requires that “the court issuing the writ have jurisdiction
over the custodian.” Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 498-98
(1973). Even though the form of commitment on a federal sentence is “remanded to the custody

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of the Attorney General of the United States,” the Supreme Court has made it clear that the
proper custodian is the warden of the place of confinement and therefore a § 2241 petition should
be filed in the district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004).
The Petition should therefore be dismissed without prejudice to its refiling in the proper
United States District Court, the Eastern District of Texas.
May 7, 2013.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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