Hinton v. The United States District Court Norfolk, VA et al

Filing 7

REPORT AND RECOMMENDATION re Petition for Writ of Habeas Corpus filed by Frank L. Hinton; directing the clerk to file the four motions filed 3/12/09 in Criminal Action No. 2:94cr106 - two petitions for writ of habeas corpus, one petition for writ of ad prosequendum, and one motion for bond hearing - in the instant case, Civil Action No. 2:09cv90; directing that the petition be deemed amended to substitute Warden, United States Penitentiary - Hazelton, as respondent in place of respondents The Un ited States District Court Norfolk, VA and The United Marshall's Service - Richmond, VA; recommending transfer to USDC for Northern District of West Virginia. Signed by Magistrate Judge F. Bradford Stillman and filed on 6/29/09. Copy mailed to petitioner 6/29/09.(mwin, )

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

FILED
JUN 2 9 2009
CLERK, U.S. DISTRICT COURT
NORFOLK. VA

Norfolk Division

FRANK L.

HINTON,

#26366-083,
Petitioner,

v.

CIVIL ACTION NO.
STATES DISTRICT COURT

2:09cv90

THE UNITED

NORFOLK,

VA,

et al.,
Respondents.

UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

This

matter

was

initiated by

petition

for

writ

of

habeas

corpus.

The matter was referred to the undersigned United States
Judge pursuant to the provisions of 28 U.S.C. §

Magistrate

636 (b) (1MB)

and

(C) ,

Rule 72 (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. For the reasons set

forth herein,

the Court

recommends

that

the Court

exercise its

authority under 28 U.S.C. § 1631 to TRANSFER this petition for writ
of habeas corpus to the United States District Court for the

Northern District of West Virginia, it appearing that jurisdiction
would properly lie in that
I.

court.
THE CASE

STATEMENT OF

A.

Background

Petitioner,

Frank L.

Hinton

("Hinton"),

was convicted in the

United States District Court for the Eastern District of Virginia, Norfolk Division. On February 14, 1995, United States District

Judge Raymond Jackson sentenced Hinton

to

a prison

term of

100

months

after

pleading

guilty

to

one

count

of

possession

of

a
§

firearm by a convicted felon,

18 U.S.C.

§ 922(g)(l).

18 U.S.C.

924 (a) (2) provides a maximum penalty of ten years in prison for the
crime in question - that is, more than Hinton's 100 months.

On February 26,

2009,

Hinton filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241.

It is unclear at which On April
change,

incarceration center Hinton was imprisoned at that time.
2, 2009, however, Hinton filed a notice of address

indicating that he is presently incarcerated at the United States Penitentiary
Virginia.

-

Hazelton

("Hazelton"),

in

Bruceton

Mills,

West

As the petition was not accompanied by the required filing fee

or a request to proceed in forma pauperis, Hinton's inmate account information

the Court requested to ascertain

from Hazelton

whether petitioner should be required to pay a filing fee.

On March 12, 2009,

the Court received and filed four motions

by Hinton:

two petitions for writ of habeas corpus,

one petition

for a writ of ad prosequendum, and one motion for a bond hearing. These motions were filed on Hinton's trial docket, Criminal Action
No. 2:94crlO6. The Court DIRECTS the Clerk to file these four

motions

{Doc. Nos.

65-68)

in the instant case,

Civil Action No.

2:09cv90.

On May 5, 2009,

the Court entered an order granting Hinton the

ability to proceed in

forma pauperis.

The order also directed
an

Hinton to file, within thirty (30) original and two (2)

days of entry of the order,

copies of the petition on the correct forms.

A copy of this order was mailed to Hinton at Hazelton.

On June 4,

2009, the Court filed Hinton's amended petition, which was received
with two (2) copies.
B. Grounds Alleged

It

appears

that

Hinton

asserts

in

this

Court

that

he

is

entitled to

relief

because Judge Jackson misapplied the United

States Sentencing Guidelines and Sentencing Reform Act of 1984 when

he imposed the 100 month prison term upon Hinton and that Hinton
has already served the 100 month prison term.
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

As an initial matter,

the Court must determine how to charac

terize Hinton's motions, differs.

as venue for § 2241 and § 2255 petitions

Section 2241 cases must be filed in the district where the
United States v. Miller,

custodian of the petitioner is located.

871 F.2d 488, 490 (4th Cir. 1989) .

Section 2255 cases must be filed
28 U.S.C. § 2255. The

in the court which imposes the sentence.

case is currently characterized as a 28 U.S.C.
the docket.

§ 2241 petition on

Hinton originally filed a petition for writ

of habeas

corpus

in

this

Court

on

February

26,

2009.

The

Court

received

four

additional motions on March 12, 2009, as noted above.

One of those

motions, to

Docket No.

68 in the 2:94crlO6 case, on February 26, 2009.

is nearly identical That petition is

the petition
and it

filed
is

rambling,

difficult

to make out what

arguments Hinton

presents in it.

It appears,

however,

that Hinton is arguing that

Judge Jackson misapplied the United States
when he sentenced Hinton. Generally,

Sentencing Guidelines
not

such an argument does

support § 2255 relief, but may support such relief given extraordi
nary circumstances, such as when a sentence exceeds a statutory

maximum,
1999) .

united States v.

Preaent,

190 F.3d 279,

283-84

(4th Cir.

Hinton argues that he believed he would receive twenty-four

months

incarceration by
sentence of

entering a
was

guilty plea,

and

that
18

Judge
§

Jackson's

100

excessive.

However,

U.S.C.

924 (a) (2) provides a maximum penalty of ten years in prison for the
crime in question that is, more than Hinton's 100 months. It

therefore appears unlikely the Hinton's petition is cognizable as a § 2255 claim. While § 2255 is ordinarily the appropriate way to

challenge

a federal

conviction or sentence,

§

2241

jurisdiction

exists when § 2255 provides no adequate remedy.
Therefore,
petition.

UL. at 284 n-6

Hinton's petition should be characterized as a § 2241

The Court March 12,

also

received

three a

other motions motion for a

from Hinton on bond hearing, a

2009.

They

include

petition for a writ of ad prosequendum,

and another petition for

writ

of habeas

corpus.

It

appears

that

these

three motions

all

argue that Hinton has already served the 100 month sentence and that he should therefore be released. sentence are properly § 490. Therefore, Challenges to the execution of a See Miller. 871 F.2d at

2241 petitions.

these three motions should be characterized as a
§ 2241.

part of a claim under

When Hinton was

transferred to Hazelton,

the warden of

that

facility gained custody of Hinton.

The proper respondent in a 28

U.S.C.

§ 2241 case is the warden of the institution that exercises the petitioner at the time the petition is filed. the

custody over

Rumsfeld v. Padilla. 542 U.S. 426, 434-35 (2004). Court ORDERS that the petition be deemed

Accordingly, to

amended

substitute

Warden,

United States

Penitentiary - Hazelton,

as Respondent,

in
VA

place of Respondents The United States District Court Norfolk,
and The United Marhsall's Service - Richmond, VA.

Because service of process

cannot be made on the Warden of

Hazelton within the Eastern District of Virginia, the Court does not

have personal jurisdiction over him.
commission, v. 746 F.Supp. 617, 619

Bowers v. United States Parole
1990). Cir. See Chatman-Bey This Court

(E.D. Va. (D.C.

Thornburah,

864 F.2d 804,

810-14

1988).

cannot
enjoys

consider a petition
personal

for writ
over

of
the

habeas

corpus

unless

it

jurisdiction

petitioner's
410 U.S. 484,

custodian.
495 (1973),

Braden v.

30th Judicial

Circuit Court,

Schlanaer v.

Seamans,

401

U.S.

487,

491

(1971).

Accordingly,

this

Court may not entertain Hinton's petition.

Rather

than

dismiss

Hinton's

petition

without

prejudice,

so

that he might file it in the appropriate district, that the Court exercise its authority under 28

it is recommended U.S.C. § 1631 to

transfer the petition.
jurisdiction may where such a

Section 1631 provides
to a

that a court lacking
jurisdiction, justice. The

transfer an action would be in

court with of

transfer

the

interests

Court

notes

that as

an incarcerated pro

se

litigant,

Hinton would

face

significant

burdens,

including

the

costs

associated

with

producing and mailing copies of his petition,
file his petition in another District.
III. RECOMMENDATION

were he forced to re-

As

it

appears

that

this

Court

cannot
and that

exercise

personal

jurisdiction over Hinton's

custodian,

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

Northern District of West Virginia,
would properly lie in that
IV.

it appearing that jurisdiction

court.
REVIEW PROCEDURE

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
the date

findings

and

recommendations

days

of mailing of
and Rule
days to

this report to the objecting party, Federal
6(a) of

see 28 U.S.C.

§ 636 (b) (1) <C) to
(3)

Rule
the

of

Civil

Procedure

72(b),

computed pursuant
plus three may

Federal Rule

Rules 6(e)

of Civil said

Procedure, A

permitted

by

of

rules.

party

respond

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
tions

this report or specified findings or recommenda

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
Thomas v.

this
Am.

Court based on such

findings

and recommendations.

474 U.S.
cert,

140

(1985);

Carr v.
1019

Hutto,
(1985);

737

F.2d 433

(4th Cir.

1984),
727

denied,

474 U.S.

United States v.
U.S. (1984).

Schronce,

F.2d 91

(4th Cir.),

cert,

denied,

467

United Stares Magistrate Judge

Norfolk,

Virginia

June 1P\ , 2009