Denoyer v. US Parole Commission et al

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATION 8 of Magistrate Judge Shon T. Erwin...the report and recommendation determines this court lacks jurisdiction to grant the writ sought by petitioner; this case is dismissed rather than transferred. Signed by Honorable Joe Heaton on 9/9/2016. (cla)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

DALE ERNEST DENOYER

Petitioner,
NO. CIV-16-0545-HE

vs.

U.S. PAROLE COMMISSION, et al,

Respondent.
ORDER

Petitioner, a federal inmate appearing pro se, filed this case in the U. S. District
Court for the District of Columbia, seeking a writ of habeas corpus under 28 U.S.C. § 2241.
As petitioner was being held in the Federal Transfer Center in Oklahoma City, Oklahoma

("FTC") at the time of the filing, the case was transferred to this District. Thereafter,
consistent with 28 U.S.C. § 636(b)(1)(B), the matter was referred for initial proceedings to
Magistrate Judge Shon T. Erwin, who has issued a Report and Recommendation (the

"Report"). The Report indicates that petitioner has since been transferred to the United
States Penitentiary, Leavenworth in Leavenworth, Kansas.

The Report therefore

recommends that this case be transferred to the District of Kansas, where petitioner is
presently held.

Petitioner has not filed an objection to the report and recommendation and has

therefore waived any right to appellate review ofthe factual and legal issues addressed in the
Report. United States v. One Parcel of Real Property. 73 F.3d 1057, 1059-60 (10th Cir.
1996);

also 28 U.S.C. § 636(b)(1).

For the reasons stated in the Report, the court concludes this court lacks jurisdiction
to grant the relief sought by petitioner. However, the court also concludes that, as this case

could not have been filed at its inception in the District of Kansas, the transfer statute does
not authorize transfer of the case to the District of Kansas by this court. 28 U.S.C. § 1631
(transfer can be made to another court "in which the action... could have been brought at the

time it was filed"). Therefore, the appropriate action here is to dismiss the case. If plaintiff
elects to pursue this further, he should do so by a new filing in the district where he is
located, presently the District of Kansas.

Accordingly, the Report and Recommendation [Doc. No. 8] is ADOPTED insofar as

it determines this court lacks jurisdiction to grant the writ sought by petitioner. This case is
DISMISSED rather than transferred.

IT IS SO ORDERED.

Dated this

day of September, 2016.

TON

J/S. DISTRICT JUDGE