ORTEGA v. HOLLINGSWORTH et al

Filing 21

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/29/2016. (tf, n.m.) [Transferred from New Jersey on 3/31/2016.]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GIRSON J. ORTEGA,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil No. 15-1253 (JBS)

v.
WARDEN JORDAN HOLLINGSWORTH, et
al.,

OPINION

Respondents.

APPEARANCES:
Girson J. Ortega
Fed. Reg. 64189-066
FCI Fort Dix
P.O. Box 2000
Fort Dix, NJ 08640
Pro Se
Kevin H. Bradford
COMMONWEALTH OF PENNSYLVANIA
OFFICE OF THE ATTORNEY GENERAL
21 South 12th Street, 3rd Floor
Philadelphia, PA 19107
Attorney for Respondents Warden Jordan Hollingsworth and
The Attorney General of Pennsylvania
SIMANDLE, Chief Judge:
I.

INTRODUCTION
This matter comes before the Court on Respondent Attorney

General of Pennsylvania’s (“Respondent”) motion to transfer the
Petition for Writ of Habeas Corpus to the United States District
Court for the Middle District of Pennsylvania (“Middle
District”) pursuant to 28 U.S.C. § 1404(a). (Motion to Transfer,

Docket Entry 17). Pro se Petitioner Girson J. Ortega
(“Petitioner”) did not file opposition to the motion; however,
he filed a motion to void this Court’s October 27, 2015 Order.
(Motion Coram Non Judice, Docket Entry 20). The motions are
being decided on the papers pursuant to Fed. R. Civ. Pro. 78(b).
For the reasons set forth below, Respondent’s motion is granted,
and the petition shall be transferred to the Middle District.
Petitioner’s motion shall be denied.
II.

BACKGROUND
Petitioner, a federal prisoner presently confined at FCI

Fort Dix, filed a petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 on February 18, 2015, challenging the judgment
of convictions entered against him by the Court of Common Pleas
for the 17th Judicial District Pennsylvania in Union County.
(Petition, Docket Entry 1). By Order dated February 24, 2015,
the Court administratively terminated the petition as Petitioner
did not use the proper habeas form for 28 U.S.C. § 2254
petitioners, and did not pay the $5.00 filing fee or submit a
complete in forma pauperis application. (Docket Entry 2). The
Court allowed Petitioner to reopen the matter within 30 days,
which Petitioner did on March 12, 2015. (Docket Entry 4).
After reopening the matter, the Court reviewed the petition
pursuant to 28 U.S.C. § 2254 Rule 4 and ordered FCI Fort Dix
Warden Jordan Hollingsworth to be substituted as a respondent.
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(April 8, 2015 Order, Docket Entry 5). The Court ordered Warden
Hollingsworth and the Attorney General of Pennsylvania to
respond to the petition within 45 days. (Id.); see also 28
U.S.C. § 2254 Rule 2(b). As no answer was received from either
Respondent within the 45-day period, an order to show cause was
entered on June 1, 2015. (Docket Entry 8).
Two days later, counsel for Respondent Hollingsworth wrote
to the Court arguing that because Petitioner only challenges his
state sentence, not the federal sentence for which Petitioner is
presently incarcerated in Fort Dix, the Pennsylvania authorities
should primarily handle this matter. (Docket Entry 9). The
Pennsylvania Office of the Attorney General responded that it
had not responded under the good faith belief it would not be a
party to the present action, but it would assume responsibility
for filing a response. (Docket Entry 11). Counsel for the
Pennsylvania Attorney General’s Office then entered a notice of
appearance on July 23, 2015, along with a Motion for Leave to
Appear Pro Hac Vice. (Docket Entry 12). The Court granted the
motion on August 13, 2015. (Docket Entry 15).
Because the Pennsylvania Attorney General missed the 14-day
response deadline in the original order to show cause,
Petitioner filed a motion for default judgment on August 10,
2015. (Docket Entry 14). This motion was later denied in an
order entered on October 27, 2015, which reinstated the Attorney
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General of Pennsylvania as a Respondent and directed Respondents
to submit an answer to the petition within 30 days. (October 27,
2015 Order, Docket Entry 16). The present motion to transfer
venue was timely filed on November 24, 2015, accompanied by a
motion for an extension of time to file an answer. (Docket
Entries 17 and 18). The Court granted the motion for an
extension of time and ordered that Respondents need not answer
the petition until the resolution of the motion to transfer
venue. (Docket Entry 19). Petitioner filed a motion to void the
October 27th order as Coram Non Judice. (Docket Entry 20).
III. DISCUSSION
A. Motion Coram Non Judice
Petitioner argues that (1) the Court erred in denying
Petitioner’s motion for default judgment; (2) the Court under 28
U.S.C. § 2254 cannot involve Warden Jordan Hollingsworth or his
counsel in the case; and (3) the consent decree surrounding
Petitioner’s guilty plea is violated by the Court’s addition of
said parties. (See generally Motion to Void Order 16 Docket
Entry 20).
Petitioner’s motion is without merit. Coram non judice,
literally translated as “before a person not a judge,” “mean[s],
in effect, that the proceeding in question was not a judicial
proceeding because lawful judicial authority was not present,
and could therefore not yield a judgment.” Burnham v. Superior
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Court of Ca., Cty. of Marin, 495 U.S. 604, 608-09 (1990).
Despite Petitioner’s contentions, the Court has jurisdiction
over the § 2254 proceedings, as it is the District Court for the
district in which he is presently confined. Petitioner also
fails to explain in any meaningful manner how the Court’s denial
of default judgment is erroneous beyond simply alleging what was
previously stated in Petitioner’s motion for default judgment.
(Docket Entry 14). As the Order entered on October 27th explains,
Respondent timely filed for and was granted an extension,
therefore avoiding default judgment being entered.

(Docket

Entry 16).
Additionally, the Court did not err in including either
individual in the present matter. By Petitioner’s own words,
this matter concerns whether Pennsylvania proffered consecutive
or concurrent sentencing in his guilty plea for state charges in
Union County, Pennsylvania. According to section 2254, “[i]f the
petitioner is not yet in custody but may be subject to future
custody under the state-court judgment being contested, the
petition must name as respondents both the officer who has
current custody and the attorney general of the state where the
judgment was entered." 28 U.S.C. § 2254 Rule 2(b). Thus, Warden
Hollingsworth, as Petitioner's current custodian, must be named
as a Respondent along with the Attorney General of Pennsylvania.
Finally, while Petitioner correctly summarizes consent
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decree doctrine, the present matter does not rely upon this.
Rather, the present motion rests upon whether Hollingsworth is a
party to the present matter. The addition of Warden Jordan
Hollingsworth does not in any material manner affect the
contested guilty plea agreement between Petitioner and
Pennsylvania authority, and Hollingsworth’s presence in the
matter is as a matter of law required for filing a federal
habeas petition. Accordingly, Petitioner’s motion is denied.
B. Motion to Transfer Venue
Respondent seeks to transfer the present petition to the
Middle District, asserting primarily that the Middle District is
the better venue. 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 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). Furthermore, “[t]he district court for the
district wherein such an application is filed in the exercise of
its discretion and in furtherance of justice may transfer the
application to the other district court for hearing and
determination.” Id. Therefore, Petitioner’s original petition
was properly filed in this district as he is confined at FCI

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Fort Dix, New Jersey, and the Court retains the ability to
transfer venues in the furtherance of justice.
Petitioner challenges the validity of his guilty plea
originating from Pennsylvania insofar as he alleges that he was
promised his state court sentence would run concurrently with
his federal sentence. (Petition, Docket Entry 1). The threshold
question is then whether Pennsylvania serves as the better venue
in this matter. As Petitioner is facing a Pennsylvania state
charge where the relevant components of the matter reside within
Pennsylvania’s jurisdiction, the Court concludes that it is.
Courts may transfer a habeas corpus action “for the
convenience of parties and witnesses to any other district where
it might have been brought.” Verissimo v. I.N.S., 204 F. Supp.
2d 818, 820 (D.N.J. 2002) (citing 28 U.S.C. § 1404(a); Braden v.
30th Judicial Circuit Court, 410 U.S. 484, 493–94 (1973)). In
making this determination, “a court may analyze factors such as
where the material events occurred, where the records and
witnesses are located, and the convenience of forum for both
parties. The district in which sentencing and conviction
occurred is favored because of the availability of evidence and
witnesses.” Id. (citing Braden, 410 U.S. at 493–94; Henderson v.
I.N.S., 157 F.3d 106, 128 n.25 (2d Cir. 1998)).
A transfer of venue would be in the interests of justice as
the original action, conviction and sentence did not occur in
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New Jersey. The material events underlying this habeas petition
occurred within the confines of the Middle District as
Petitioner’s convictions were obtained in Union County,
Pennsylvania. Additionally, all records and witnesses pertaining
to Petitioner’s state court convictions are located in
Pennsylvania. (Motion to Transfer at 2, 9). Pennsylvania is also
more convenient, as Petitioner and Respondent would both be
located in Pennsylvania following the conclusion of Plaintiff’s
federal sentence. The Court is mindful of the deference owed to
Petitioner’s choice of forum, but that deference is outweighed
by all the factors pointing towards the Middle District of
Pennsylvania being the better forum. 28 U.S.C. § 1404(a); see
also In re Nwanze, 242 F.3d 521, 526 n.25 (3d Cir. 2001) (noting
that “ordinarily a transfer of a [habeas] proceeding relating to
the validity of the petitioner's conviction from the district of
confinement to the district of sentencing would be in
furtherance of the convenience of the parties and witnesses”).
The Court therefore finds it is in the interests of justice
to transfer the petition to the Middle District. 28 U.S.C. §§
1404(a), 2241(d).
IV. CONCLUSION
For the above stated reasons, Respondent’s motion to
transfer the petition to the District Court for the Middle
District of Pennsylvania is granted. Petitioner’s motion to void
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the Court’s October 27, 2015 is denied. An accompanying Order
will be entered.

March 29, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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