Neal v. Stansberry

Filing 17

REPORT AND RECOMMENDATION re 16 Amendment to Petition for Writ of Habeas Corpus, 1 Petition for Writ of Habeas Corpus, recommending transfer of this petition to District of Colorado; AMENDING petition to SUBSTITUTE Warden, FCI Florence in place of Patricia R. Stansberry as respondent. Signed by Magistrate Judge F. Bradford Stillman on 6/9/09 and filed 6/11/09. Copy mailed to petitioner 6/11/09.(mwin, )

UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OP VIRGINIA

Norfolk Division TYREE M. NEAL, SR. , #05534-025,

Petitioner,
v.

ACTION NO.
STANSBERRY

2:08cv559

PATRICIA R.

Respondent.

UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This
corpus

matter
28

was
U.S.C.

initiated
§ 2241.

by

petition
matter

for
was

writ

of

habeas
to to the the

under

The

referred

undersigned provisions

United

States §

Magistrate

Judge and (C),

pursuant Rule 72(b)

of 28 U.S.C.

636(b)(l)(B)

of the

Federal Rules of Civil

Procedure,

and Rule 72

of the Rules of the

United States District Court for the Eastern District of Virginia.
I. STATEMENT OF THE CASE

A.

Background

Petitioner,

Tyree M.

Neal,

Sr.

("Neal"),

was convicted in the

United States District Court for the Southern District of Illinois. On June 12, On 2001, August Center that 4, court 2008, Medium sentenced while in in Neal to a at term the of 137

months.

custody

Federal

Correctional
Virginia,

Petersburg

("FCC-Petersburg"),

Petitioner was

charged by incident report with violating

a Bureau of

Prisons

rule by engaging in a sex act.

On August

8,

2008,

four days

after

the

incident,

Neal

had a

hearing

before

the

Unit

Disciplinary

Committee.

Neal

contends

that,

in addition to the hearing not being held within the required

three-day time period, he was denied the right to call witnesses on
his behalf at the hearing. Neal further contends that the

disciplinary hearing officer was not impartial.

On November

24,

2008,

Neal

filed

a petition

for

a writ

of

habeas corpus pursuant

to 28 U.S.C.

§

2241.

As

the petition was

not accompanied by the required filing fee or a request to proceed in forma pauperis,
from

the

Court

requested
to

Neal's

inmate

account

information

FCC-Petersburg

ascertain

whether

petitioner

should be required to pay a filing fee.

On December 9,

2008,

the Court entered an order denying Neal

the ability to proceed in forma pauperis and ordering Neal to pay
the required $5.00 filing fee within thirty (30) days. A copy of

this Order was mailed to Neal at FCC-Petersburg. 2008,

On December 24, 2008 Order.

Neal filed a response to the Court's December 9,

The

response
F.

was

titled

"Petitioner's
Stillman's

Response

to

Unauthorized
9, 2008

Magistrate

Bradford

Gratuitous

December

Order."

The Court construed the response as an objection which the 2009, and again ordered Neal

Court overruled by order on January 8, to pay the required filing fee.

A copy of the Court's January 8,

2009 order was mailed to Neal at FCC-Petersburg.1

1 The staff at Federal Correctional

FCC - Petersburg forwarded Neal's mail Institution - Florence ("FCI-Florence").

to

On February 3,

2009,

the copy of

the Court's

January

8,

2009

order

that

was

mailed

to

Neal

was

returned

to

the

Court

as

undeliverable.2
January 8,
order

On

February

10,

2009,

the

Court

reentered

its

2009 Order and directed the Clerk to mail a copy of the
at the United States Penitentiary Atlanta ("USP-

to Neal

Atlanta")

where Neal was

then located.

After filing fee, On April
and

granting

a motion

for

an

extension of

time

to pay

the

the Court received Neal's filing fee on April 14, 2009, the Court
to file a

2009. filed
the

16,

ordered Neal's
memorandum of

petition
law

to be

directed Neal

setting

forth

factual basis

for his

due process

claim,

as

the factual basis was

not clear from the petition.3
Neal at FCI-Florence, The Court

A copy of this Order was mailed to
was then, and is now currently, 2009.

where Neal

located.

received Neal's Memorandum on May 27,
B. Grounds Alleged

Neal now asserts
pursuant to 28 U.S.C. the

in this Court
§ 2241

that he
he

is

entitled to relief
denied Bureau due of process Prisons

because

was

protections

under

Fifth Amendment

when

the

failed to afford him the procedural safeguards set out in Bureau of
Prisons Program Statement 5270.07 and 28 C.F.R. § 541.

2 Neal did not advise the Court of his change of address. 3 By requiring Neal to file a memorandum in support of his

petition, the Court was attempting to ascertain whether Neal was properly proceeding under 28 U.S.C. § 2241 or whether his petition should be considered under 28 U.S.C. § 2255.

II.

FINDINGS

OF FACT AND CONCLUSIONS

OF LAW

When Neal was

transferred to FCI Florence,

the warden of that

facility gained, and Respondent Patricia R. Stansberry lost, custody
of Neal. Accordingly, the Court ORDERS that the petition be deemed
FCI Florence in place of Patricia R.

amended to substitute Warden,
Stansberry as Respondent.

Because service of process cannot be made on the Warden of the
Florence Federal Correctional Institution within the Eastern

District of Virginia,
over him.
617, 804, 619

the Court does not have personal jurisdiction
United States Parole Commission.
See Chatman-Bev v.

Bowers v.
(E.D. Va.

746 F.Supp.
864 F.2d

1990).

Thornburah.

810-14

(D.C. Cir.

1988).

This Court cannot consider a petition

for writ
over

of habeas

corpus

unless

it

enjoys

personal

jurisdiction
Circuit

the petitioner's 410 U.S. 484,

custodian. (1973),

Braden v.

30th Judicial

Court,

495

Schlanaer v. Seamans,

401 U.S. 487,

491

(1971).

Accordingly,

this

Court

may

not

entertain

Neal's

petition.

Rather than dismiss Neal's petition without prejudice,

so that

he might file it in the appropriate district,

it is recommended that
§ 1631 to transfer

the Court exercise its authority under 28 U.S.C.

the

petition.

Section

1631

provides

that

a

court

lacking

jurisdiction may transfer an action to a court with jurisdiction,
where such a transfer would be in the interests of justice. The

Court notes that as an incarcerated pro se litigant, Neal would face

significant burdens,

including the costs associated with producing
were he forced to re-file his

and mailing copies of his petition,
petition in another District.
Ill.

RECOMMENDATION

As

it

appears

that

this

Court

cannot

exercise

personal

jurisdiction

over Neal's

custodian,

and

that

it

would

serve

the

interests

of

justice,

it

recommends

that

the

Court

exercise

its

authority under 28 U.S.C. of habeas corpus to the

§ 1631 to TRANSFER this petition for writ United States District Court for the

District of Colorado, it appearing that jurisdiction
lie in that court.
IV. REVIEW PROCEDURE

would properly

By

copy

of

this

Report

and

Recommendation,

the

parties

are

notified that:

1.

Any party may serve upon the other party and file with the

Clerk

specific

written within

objections ten (10)

to

the from

foregoing

findings

and

recommendations

days

the date of mailing of

this report to the objecting party, see 28 U.S.C.
Federal Rule of Civil Procedure 72(b),

§ 636 (b) (1) (C) and
to Rule

computed pursuant

6(a)

of the Federal Rules of Civil

Procedure,

plus

three

(3)

days

permitted

by

Rule

6(e)

of

said

rules.

A

party

may

respond

to

another party's specific objections within ten (10)
served with a copy thereof.

days after being

2.

A district

judge

shall

make

a

de

novo

determination

of

those

portions

of

this

report

or

specified

findings

or

recommendations

to which objection is made.

The parties are further notified that failure to file timely

objections to the findings and recommendations set forth above will
result in a waiver of the right to appeal from a judgment of this
Court based on such findings and recommendations. 474 U.S. 140 (1985); Carr v. Hutto. 737 F.2d 433 Thomas v. (4th Cir. Am.

1984),

cert,

denied.

474 U.S.

1019

(1985); United States v.
467 U.S. (1984).

Schronce.

727

F.2d 91

(4th Cir.),

cert,

denied.

United Stages Magistrate Judge
Norfolk, Virginia

June

°( , 2009

Clerk's Mailing Certificate

A copy of the foregoing Report and Recommendation was mailed
this date to the following:

Tyree M. Neal, FCI Florence
P.O. Box 6000

Sr.,

#05534-025

Florence,

CO 81266-6000

Fernando Galindo,

Clerk

By:

Deputy Clerk

June

//

,

2009