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
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