Washington v. Chesterfield Department of Social Services

Filing 2

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/24/13. Copy sent: Yes(tdai, )

IN THE UNITED

STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

ANDRE ANTHONY WASHINGTON,
Petitioner,
v.

Civil Action No.

3:13CV649

CHESTERFIELD DEPARTMENT OF SOCIAL SERVICES,
Respondent.

MEMORANDUM OPINION

Andre Anthony Washington, proceeding pro se, submitted this

petition

for

a writ

("§ 2241 Petition").

of habeas

corpus

under

28

U.S.C.

Washington is not in custody.

§ 2241

Instead,

Washington seeks to use his § 2241 Petition to challenge the
decision

Court

to

of the

Chesterfield

Juvenile

remove

Washington's

child,

and Domestic

"Baby Boy Thorne,"

Washington's home and place the child in foster care.
Pet.

8.)

Court

[]

Washington requests,

Relations

inter alia,

take my son Baby Boy Thorne

that

from

(§ 2241

"the Federal

from The Custody of

CHESTERFIELD DEPARTMENT OF SOCIAL SERVICES . . . ."

(Id^ at 9. )

In order to bring a petition for a writ of habeas corpus

under 28 U.S.C. § 2241,l the petitioner must be xvin custody."

That statute provides, in pertinent part:
(c)

The writ of habeas corpus shall not extend to a

prisoner unless—

The "in custody" requirement is jurisdictional.
Cook,

490 U.S.

488,

490

(1968).

The

See Maleng v.

Supreme Court

made

clear

that children in foster care are not "in custody" within the
meaning

of

28

U.S.C.

§ 2241(c)

and the

federal

habeas

statutes

fail to confer jurisdiction over child custody matters.

Lehman

v. Lycoming Cnty. Children's Servs. Agency, 458 U.S. 502, 510-16

(1982);
No.

see Carpenter v.

88-1148,

1988

WL

West Virginia Dep't of Human Servs.,

138473,

at *1

(4th Cir.

Dec.

21,

1988)

(admonishing that where a habeas petition sought to challenge
the removal of the petitioners'
home

"the

district

. . . petition
Accordingly,

in

court

any

children from the petitioners'

should

fashion

the § 2241 Petition

not

for

have

want

(ECF No.

entertained

of
1)

jurisdiction") .

will be dismissed

without prejudice for want of jurisdiction.

(1)

He is in custody under or by color of the

authority of the United States or is committed for
trial before some court thereof; or
(2)
He is in custody for an act done or omitted

in pursuance of an Act of Congress, or an order,
process, judgment or decree of a court or judge of
the United States; or

(3)
He
is
in
custody
in
violation
of
the
Constitution or laws or treaties of the United
States

....

28 U.S.C. § 2241(c)(l)-(3)

(emphasis added).
2

the

The

Clerk

is

directed

to

send

a

copy

of

the

Memorandum

Opinion to Washington.
It

is

so ORDERED.

/s/

(Icf

Robert E. Payne
Senior United States District Judge

Date: ^O/^OaJUa. *- %Z*>/3
Richmond, Virginia