Richitelli v. Lara
Filing
38
MEMORANDUM OPINION regarding transfer. Signed by Magistrate Judge Keith F. Giblin on 3/29/2018. (bjc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
JAY ANTHONY RICHITELLI
§
VS.
§
FRANK LARA
§
CIVIL ACTION NO. 1:17cv507
MEMORANDUM OPINION REGARDING TRANSFER
Petitioner Jay Anthony Richitelli, an inmate currently confined at the United States
Penitentiary located in Tucson, Arizona, proceeding pro se, brings this petition for writ of habeas
corpus contesting the propriety of two prison disciplinary reports.
Discussion
Petitioner brings this petition for writ of habeas corpus contesting the propriety of two prison
disciplinary reports. Petitioner received the first disciplinary report, Report No. 2654282, while he
was confined at the United States Penitentiary located in Tucson, Arizona. Petitioner received the
second disciplinary report, Report No. 2712598, while he was confined at the United States
Penitentiary in Florence, Colorado.
Analysis
Title 28 U.S.C. § 2241(a) provides that “[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.” “To entertain a § 2241 habeas petition, the district court must, upon the filing of the
petition, have jurisdiction over the prisoner or his custodian.” United States v. Gabor, 905 F.2d 76,
78 (5th Cir. 1990) (citation omitted). A § 2241 petition must be filed in the district where the
petitioner is incarcerated. Id.; Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir.1999).
Petitioner was confined at the United States Penitentiary in Florence, Colorado when he filed
the original petition which forms the basis of this action. Jurisdiction over a petitioner’s habeas
corpus petition attaches at the time of the filing of the petition. Lee v. Wetzel, 244 F.3d 370, 375,
n. 5 (5th Cir. 1990); see also Santillanes v. U.S. Parole Comm’n, 754 F.2d 887, 888 (10th Cir. 1985)
(“It is well established that jurisdiction attaches on the initial filing for habeas corpus relief[.]”)
Pursuant to 28 U.S.C. § 85, Colorado constitutes one judicial district. Florence, Colorado
is located nearest to the United States District Court in Colorado Springs, Colorado. As petitioner
is not incarcerated in the Eastern District of Texas, this court is without jurisdiction to consider
petitioner’s petition for writ of habeas corpus; subject-matter jurisdiction cannot be waived. See
DeCell & Associates v. F.D.I.C., 36 F.3d 464, 471 (5th Cir. 1991).
Under 28 U.S.C. § 1404(a), for the convenience of parties and witnesses and in the interest
.
of justice, a district court may transfer any civil action to any other district or division where it could
have been brought. Such a transfer may be done sua sponte and is reviewable only for an abuse of
discretion. Mills v. Beech Aircraft Corp., 886 F.2d 758, 761 (5th Cir. 1989).
After considering the circumstances, the court has determined that the interests of justice
would best be served if this petition were transferred to the district in which the petitioner was
confined when he filed the petition rather than dismissed for lack of jurisdiction. An Order of
Transfer so providing shall be entered in accordance with this Memorandum Order.
SIGNED this the 29th day of March, 2018.
____________________________________
KEITH F. GIBLIN
UNITED STATES MAGISTRATE JUDGE
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