Jackson v. Atkins

Filing 9

ORDER directing Petitioner to file an amended petition on or before 5/4/18. The Clerk is directed to re-note petitioner's motion to transfer 8 to May 4, 2018. Signed by Magistrate Judge J Richard Creatura. (Attachments: # 1 Amended Petition (blank))(CMG)(cc mailed to Petitioner)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LOWELL EDWARD JACKSON,
Petitioner,

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CASE NO. 3:17-cv-06085-RBL-JRC
ORDER TO SUBSTITUTE
RESPONDENT AND ORDER TO
AMEND

v.
CHUCK E. ATKINS,
Respondent.

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The District Court has referred this petition for a writ of habeas corpus to United States

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Magistrate Judge J. Richard Creatura. The Court’s authority for the referral is 28 U.S.C. §

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636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner Lowell

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Edward Jackson filed the petition pursuant to 28 U.S.C. § 2254.

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Petitioner alleges that he is being unlawfully held in the Oregon State Penitentiary based

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on either a conviction or an arrest warrant from Clark County in Washington. Though he initially

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named the Clark County Sheriff as the respondent, he has since requested that the proper

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ORDER TO SUBSTITUTE RESPONDENT AND
ORDER TO AMEND - 1

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respondent, namely the superintendent of the prison in which he is housed, be substituted in this

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case.

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If petitioner is challenging the conviction on which he is currently being held, the

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superintendent is not within the Western District of Washington’s territorial jurisdiction and the

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Court cannot exercise personal jurisdiction over him. However, if petitioner is challenging future

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custody in Clark County, the Court would have personal jurisdiction. Therefore, before making a

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determination on petitioner’s motion to transfer, petitioner must file an amended complaint

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clarifying whether he is challenging the conviction on which he is being held.
Therefore, petitioner is being given an opportunity to clarify this by identifying the

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conviction he is challenging.

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BACKGROUND

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Petitioner is an inmate housed in the Oregon State Penitentiary. Petitioner originally filed

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this action in Oregon, naming the Clark County Sheriff as respondent and alleging that he was

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being illegally detained under a Clark County order. Dkt. 1. Because petitioner named a

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Washington resident as respondent and challenged a Washington order, the Oregon court

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transferred the case to the Western District of Washington. Dkt. 3. This Court ordered petitioner

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to show cause or amend his complaint to include the appropriate respondent, namely the person

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with custody of petitioner. Dkt. 7. Petitioner subsequently substituted the correct respondent and

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filed a motion to transfer the case back to Oregon. Dkt. 8. Petitioner’s habeas petition is unclear

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as to whether he is challenging a Washington order or whether he is challenging a Washington

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conviction for which he will be imprisoned in the future.

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//

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ORDER TO SUBSTITUTE RESPONDENT AND
ORDER TO AMEND - 2

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DISCUSSION
I.

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Substitution of Respondent
Petitioner originally named Chuck Atkins, the Clark County Sheriff, as the respondent in

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this action. As noted in the Court’s previous order, under Rule 2(a) of the Rules Governing

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Section 2254 Cases, “the petition must name as respondent the state officer who has custody.”

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The appropriate state officer is the person “with the ability to produce the prisoner’s body before

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the habeas court.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).

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Here, petitioner has submitted a motion to transfer that indicates he desires to change the
respondent to Brandon Kelly. Dkt. 8. Brandon Kelly is the superintendent of the Oregon State

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Penitentiary, the prison in which petitioner is housed. Because of this, Kelly is the proper

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respondent in this habeas action. Therefore, the Court directs the Clerk to substitute Brandon

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Kelly as the respondent. The Court emphasizes that, although petitioner’s original petition has

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not been amended to reflect the new respondent, the Court treats the petition as though Brandon

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Kelly has replaced Chuck Atkins as the respondent.

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II.

Motion to Transfer
Plaintiff has also filed a motion to transfer his case to the District of Oregon, indicating

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that, because Kelly is now the respondent, the “jurisdiction has changed” in his case. Dkt. 8. The

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Court interprets this as a motion to transfer the case for lack of personal jurisdiction.

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“Federal courts have authority to grant writs of habeas corpus ‘within their respective

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jurisdictions.’” Malone v. Calderon, 165 F.3d 1234, 1237 (9th Cir. 1999) (quoting 28 U.S.C. §

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2241). As noted above, the proper respondent in a habeas case is petitioner’s custodian. Padilla,

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542 U.S. at 434. Because of this, a petitioner need not be confined in the district where he files

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the petition, so long as the Court retains personal jurisdiction over petitioner’s custodian. See

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ORDER TO SUBSTITUTE RESPONDENT AND
ORDER TO AMEND - 3

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Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495 (1973). To determine jurisdiction “[i]n

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habeas challenges to present physical confinement . . . the district of confinement is synonymous

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with the district court that has territorial jurisdiction over the proper respondent.” Padilla, 542

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U.S. at 444 (emphasis in original). Therefore, when the petitioner names a respondent who is

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beyond the district court’s territorial jurisdiction, the Court generally lacks personal jurisdiction

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to consider the petition. See Malone, 165 F.3d at 1237; see also Lee v. Wetzel, 244 F.3d 370,

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373-74 (5th Cir. 2001) (finding that, in the case of a federal conviction, the district of conviction

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is only proper if it is also the district of incarceration).

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However, if petitioner is challenging a conviction for which he will be incarcerated in the

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future, the proper respondents are his custodian as well as the attorney general of the state where

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his future custody will take place. See Rules Governing Section 2254 Proceedings, Rule 2(b). In

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that case, the Court has personal jurisdiction and can entertain a habeas petition because the

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attorney general would be within the Court’s territorial jurisdiction.

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Here, it is unclear whether the Court has personal jurisdiction. The Court has substituted

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Brandon Kelly as the respondent in this action. Respondent is the superintendent of the Oregon

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State Penitentiary, has custody of petitioner, and is therefore the proper respondent in this action.

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He is also outside the territorial limits of the Western District of Washington. Thus, if petitioner

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is challenging a conviction for which he is currently confined in Oregon, the Court will not have

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personal jurisdiction and must dismiss the petition or transfer it to the United State District Court

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for the District of Oregon. However, if petitioner is challenging a Washington conviction for

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which he will serve time in Washington, he must name as respondents both his present custodian

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and the Washington Attorney General, and the Court would then have jurisdiction.

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ORDER TO SUBSTITUTE RESPONDENT AND
ORDER TO AMEND - 4

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Therefore, petitioner is ordered to file an amended petition explaining whether he is

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challenging a conviction for which he is currently incarcerated, or a conviction for which he will

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be incarcerated in Washington in the future.

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CONCLUSION

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For the reasons stated above, petitioner is directed to file an amended petition on or

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before May 4, 2018.

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The Clerk is directed to renote petitioner’s motion to transfer (Dkt. 8) to May 4, 2018.

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The Clerk is also directed to send plaintiff the appropriate forms for filing a petition for

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habeas corpus relief pursuant to 28 U.S.C. § 2254. The Clerk is further directed to provide copies
of this Order to petitioner.
Dated this 2nd day of April, 2018.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SUBSTITUTE RESPONDENT AND
ORDER TO AMEND - 5