Pierce v. Roberts et al

Filing 7

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Christopher Pierce, recommending the Court transfer the action to the District of Kansas. Parties advised of their right to object to the R&R. Objections to R&R due by 5/4/2006. This R&R terminates the referral to Judge Robert Bacharach.. Signed by Judge Robert Bacharach on 04/14/06. (bf, )

Pierce v. Roberts et al

Doc. 7

Case 5:06-cv-00375-R

Document 7

Filed 04/14/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA CHRISTOPHER PIERCE, Petitioner, v. RAY ROBERTS and PHIL KLINE, Respondents. ) ) ) ) ) ) ) ) )

Case No. CIV-06-375-R

REPORT AND RECOMMENDATION In this habeas action, a Kansas prisoner challenges the execution of his Kansas sentence.1 According to the petition, Mr. Pierce had been temporarily housed in Oklahoma.2 During that time, the Petitioner allegedly sent the Oklahoma Pardon and Parole Board documents proving his innocence, and Oklahoma officials were going to grant him parole on his Kansas conviction.3 Before he could be paroled, Mr. Pierce was transferred to

1

Mr. Pierce filed the petition on a 28 U.S.C. § 2254 form. See Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody (Apr. 6, 2006). While the Petitioner maintains his innocence, he is not attacking his Kansas conviction. Instead, Mr. Pierce is challenging a prison transfer, which allegedly interrupted his pending parole. See id. at p. 6. This claim is governed by 28 U.S.C. § 2241. See United States v. Furman, 112 F.3d 435, 438 (10th Cir. 1997) (claims "concerning . . . parole . . . , go to the execution of sentence and, thus, should be brought against defendant's custodian under 28 U.S.C. § 2241").
2

Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody at p. 6 & Exhibit C (Apr. 6, 2006).
3

Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody at p. 6 (Apr. 6, 2006).

Dockets.Justia.com

Case 5:06-cv-00375-R

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Filed 04/14/2006

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Kansas.4 Thus, the Petitioner seeks an "order releasing him from incarceration."5 The Court should transfer the action to the District of Kansas. The Court must have jurisdiction over the Petitioner's custodian.6 Mr. Pierce was convicted in Kansas, and his Kansas custodian is not subject to jurisdiction in the Western District of Oklahoma.7 Thus, the Court should transfer the action to the District of Kansas in the interest of justice.8 The Petitioner is advised of his right to object to this report and recommendation by May 4, 2006.9 If the Petitioner does object, he must file a written objection with the Court Clerk for the United States District Court, Western District of Oklahoma.10 The Petitioner is further advised that if he does not timely object, he would waive his right to appeal the suggested transfer to the District of Kansas.11
4

Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody at p. 6 (Apr. 6, 2006).
5

Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 by a Person in State Custody at p. 6 (Apr. 6, 2006).
6

See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495 (1973).

7

See Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) ("In habeas challenges to present physical confinement, . . ., the district of confinement is synonymous with the district court that has territorial jurisdiction over the proper respondent." (emphasis in original)); see also Griggs v. United States, 79 Fed. Appx. 359, 362 (10th Cir. Oct. 17, 2003) (unpublished op.) (Western District of Oklahoma lacked jurisdiction over a 2241 petition when the petitioner was housed in Texas).
8

See 28 U.S.C. § 1631 (2000). See W.D. Okla. Local Civil Rule 72.1(a). See Haney v. Addison, 175 F.3d 1217, 1219-20 (10th Cir. 1999). See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). 2

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Case 5:06-cv-00375-R

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The referral to the undersigned has been terminated. Entered this 14th day of April, 2006.

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