Wilburn v. United States

Filing 9

ORDER- this case is TRANSFERRED to the United States District Court for the Northern District of West Virginia. The Clerk of Court is directed to take all necessary steps to effectuate the transfer. IT IS FURTHER ORDERED that the pending Report and Recommendation [Doc. No. 7] is deemed MOOT. Petitioners pending motions [Doc. Nos. 4, 5, 8] are deferred for a ruling, if necessary, by the transferee court. Signed by Chief Judge Timothy D. DeGiusti on 3/10/2025. (jee) [Transferred from Oklahoma Western on 3/12/2025.]

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ANDRE WILBURN,

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Petitioner,
v.
UNITED STATES,
Respondent.

Case No. CIV-25-65-D

ORDER
On January 15, 2025, Petitioner Andrew Wilburn filed a pro se Petition [Doc. No.
1], brought pursuant to 28 U.S.C. § 2241. The Court now conducts an initial review of the
Petition pursuant to 28 U.S.C. § 2243 and Rule 1(b) of the Rules Governing Section 2254
Cases in the United States District Courts, which allows the Court to apply Rule 4 of those
rules to a § 2241 action.
At the time he filed the Petition, Petitioner was an inmate at Cimarron Correctional
Facility in Cushing, Oklahoma. See id. at 1; see also Pet. Envelope [Doc. No. 1-3] (showing
Petitioner mailed the Petition from Cimarron Correctional Facility). In his latest filing,
however, Petitioner states that he has been transferred to FCI Gilmer in Glenville, West
Virginia. See Mot. for Extension of Time [Doc. No. 8] at 1; see also Mot. for Extension of
Time Envelope [Doc. No. 8-1] (showing Petitioner mailed the Motion from FCI Gilmer);
BOP Inmate Locator, https://www.bop.gov/inmateloc/ (showing “Andre Wilburn” to be
incarcerated at FCI Gilmer). And based on representations made in the Petition, it appears

Petitioner was originally convicted and sentenced in the Eastern District of New York. See
Pet. at 1.
A habeas corpus petition may be heard either in the district court where a petitioner
is held in custody or in the district where the court that convicted and sentenced petitioner
is located. 28 U.S.C. § 2241(d). As mentioned, Petitioner is incarcerated at FCI Gilmer in
Glenville, West Virginia, within the district of the United States District Court for the
Northern District of West Virginia. See 28 U.S.C. § 129(a). And Petitioner purportedly
seeks to challenge his conviction and sentence entered in the Eastern District of New York. 1
Because Petitioner is not incarcerated in the Western District of Oklahoma, and the
challenged conviction or sentence was not entered here, this case cannot proceed in this
Court. Since Petitioner challenges his sentence under 28 U.S.C. § 2241, transfer to the
district where he is currently housed is appropriate at this time, even if it is later determined
that Petitioner must proceed under 28 U.S.C. § 2255. Glenville, West Virginia, where
Petitioner is incarcerated, sits within the jurisdiction of the United States District Court for
the Northern District of West Virginia, see 28 U.S.C. § 129(a); therefore, transfer of this
case to that court is appropriate. See 28 U.S.C. § 1631 (providing that a district court that
finds it lacks jurisdiction to entertain a civil action may, in the interest of justice, transfer
such action to any other court in which such action could have been brought).

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The Court uses the word “purportedly” because, based on the allegations in the Petition, it appears
the relief Petitioner seeks is available, if at all, under 28 U.S.C. § 2255. However, the Court will
allow the transferee court to make that determination.

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IT IS THEREFORE ORDERED that this case is TRANSFERRED to the United
States District Court for the Northern District of West Virginia. The Clerk of Court is
directed to take all necessary steps to effectuate the transfer.
IT IS FURTHER ORDERED that the pending Report and Recommendation [Doc.
No. 7] is deemed MOOT. Petitioner’s pending motions [Doc. Nos. 4, 5, 8] are deferred for
a ruling, if necessary, by the transferee court.
IT IS SO ORDERED this 10th day of March, 2025.

TIMOTHY . DeGIUSTI
Chief United States District Judge

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