Clifton v. Schofield, et al

Filing 24

REPORT AND RECOMMENDATION: The Magistrate Judge recommends and concludes that the interests of justice and judicial economy would be served by the TRANSFER of this case to the United States District Court for the Western District of Tennessee, Eastern Division. Signed by Magistrate Judge John S. Bryant on 7/7/2015. (xc: Pro se party by regular and certified mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
TERRY LEE CLIFTON
v.
DERRICK SCHOFIELD, ET AL.

To:

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No. 3:14-1469
Judge Haynes/Bryant

The Honorable William J. Haynes, Jr., Senior Judge

REPORT AND RECOMMENDATION
By order entered February 6, 2015, this habeas case was referred to the
undersigned for pretrial management. (Docket Entry No. 17) Currently pending are the pro
se petitioner’s motions (Docket Entry Nos. 19 and 22) for leave to amend his original
petition, which petition was found to state at least one colorable claim for relief. (Docket
Entry No. 4) Respondents the Tennessee Attorney General and Gerald McAllister, the
warden of the prison where petitioner is incarcerated, have been served with copies of the
original petition but have not been directed to file a response thereto. However, upon
reviewing the petition, it appears to the undersigned that this petition was not properly filed
in this district.
District court jurisdiction over petitions for federal habeas relief from state
custody is provided by 28 U.S.C. § 2241. Rittenberry v. Morgan, 468 F.3d 331, 337 (6th Cir.
2006). Subsection (d) of that statute provides as follows:
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 him and each of such district courts shall have concurrent
jurisdiction to entertain the application. The 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.
Petitioner, from the time he filed his petition until the present, has been in the custody of
Warden McAllister at the Northeast Correctional Complex in Mountain City, Tennessee,
which lies within Johnson County, located in the Eastern District of Tennessee. Petitioner
was convicted and sentenced in Madison County, Tennessee, located within the Western
District of Tennessee. While one of petitioner’s claims involves the actions of the Board of
Parole allegedly taken by officials here in the Middle District of Tennessee, the jurisdictional
provision of § 2241 is limited to the districts of conviction and confinement. Accordingly,
this case must be transferred to one or the other of those districts having concurrent
jurisdiction.
In light of the fact that petitioner appears to be currently litigating a habeas
petition involving identical procedural issues in the Western District, Clifton v. Easterling,
Case No. 1:11-1347 (W.D. Tenn, Eastern Division) -- which petition was originally filed in
this district and transferred by order of Judge Campbell,1 and was the subject of the recent
Sixth Circuit opinion in Clifton v. Carpenter, 775 F.3d 760 (6th Cir. 2014) -- the undersigned
must conclude that the interests of justice and judicial economy would be served by the
TRANSFER of this case to the United States District Court for the Western District of
Tennessee, Eastern Division. 28 U.S.C. § 123(c)(1); 28 U.S.C. § 1406(a). It is so

1

Clifton v. Traughber, Case No. 3:11-1035, Docket Entry No. 6.

2

RECOMMENDED.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).
ENTERED this 7th day of July, 2015.

s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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