Filed: May 28, 2015
Latest Update: May 28, 2015
Summary: MEMORANDUM OPINION AND ORDER OF DISMISSAL JAMES O. BROWNING , District Judge . THIS MATTER comes before the Court the Motion for Nunc Pro Tunc Under 28 U.S.C. 2241 Under Writ of Habeas Corpus in Prison, filed May 14, 2015 (CIV Doc. 1)(CR Doc. 86)(the "Petition"). Petitioner Nestor Solomon Baca seeks an order crediting his sentence for time he spent in pretrial custody. The Court will dismiss the Petition without prejudice. Baca was convicted in this Court and is confined at United Stat
Summary: MEMORANDUM OPINION AND ORDER OF DISMISSAL JAMES O. BROWNING , District Judge . THIS MATTER comes before the Court the Motion for Nunc Pro Tunc Under 28 U.S.C. 2241 Under Writ of Habeas Corpus in Prison, filed May 14, 2015 (CIV Doc. 1)(CR Doc. 86)(the "Petition"). Petitioner Nestor Solomon Baca seeks an order crediting his sentence for time he spent in pretrial custody. The Court will dismiss the Petition without prejudice. Baca was convicted in this Court and is confined at United State..
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MEMORANDUM OPINION AND ORDER OF DISMISSAL
JAMES O. BROWNING, District Judge.
THIS MATTER comes before the Court the Motion for Nunc Pro Tunc Under 28 U.S.C. § 2241 Under Writ of Habeas Corpus in Prison, filed May 14, 2015 (CIV Doc. 1)(CR Doc. 86)(the "Petition"). Petitioner Nestor Solomon Baca seeks an order crediting his sentence for time he spent in pretrial custody. The Court will dismiss the Petition without prejudice.
Baca was convicted in this Court and is confined at United States Penitentiary El Reno in Oklahoma. Because Baca is confined in Oklahoma, his Petition under 28 U.S.C. § 2241 may not be adjudicated in this district. See Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004)("[A] § 2241 habeas petitioner . . . should name his warden as respondent and file the petition in the district of confinement."). As the United States Court of Appeals for the Tenth Circuit has stated, a district court does not have jurisdiction over a petition under § 2241 unless the petitioner is confined in the same district. See Montalvo v. Werlizh, 461 F. App'x 818, 819 (10th Cir. 2012)(unpublished).1 The Court has no jurisdiction to adjudicate Baca's § 2241 Petition. To cure this jurisdictional defect, the Court must transfer Baca's Petition to the district of his confinement or dismiss it without prejudice.
A petition under 28 U.S.C. § 2241 must be filed in the district where the prisoner is confined.
Jurisdictional defects that arise when a suit is filed in the wrong federal district may be cured by transfer under the federal transfer statute, 28 U.S.C. § 1631, which requires a court to transfer an action "if the transfer is in the interest of justice." We are "authorized to consider the consequences of a transfer by taking `a peek at the merits' to avoid raising false hopes and wasting judicial resources that would result from transferring a case which is clearly doomed."
United States v. Lee, 4 F. App'x 643, 645 (10th Cir. 2001)(unpublished)(citation omitted)(quoting Haugh v. Booker, 210 F.3d 1147, 1149-50 (10th Cir. 2000)).
The Tenth Circuit has noted several factors that should be considered in determining whether to transfer or dismiss an initiating pleading. See Trujillo v. Williams, 465 F.3d 1210, 1223 n.16 (10th Cir. 2006). See also In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008)(applying Trujillo v. Williams in determining whether to transfer second § 2255 motion to court of appeals). The first of these factors is whether a new petition would be time-barred at this point. See Haugh v. Booker, 210 F.3d at 1150. Nothing in the Petition indicates that Baca's claims are at risk of being time-barred.
The other factors are whether Baca's habeas corpus claims "are likely to have merit," Trujillo v. Williams, 465 F.3d at 1223 n.16; Haugh v. Booker, 210 F.3d at 1150 n.4, and whether he filed his Petition in good faith, see Trujillo v. Williams, 465 F.3d at 1223 n.16; Trierweiler v. Croxton & Trench Holding Co., 90 F.3d 1523, 1544 (10th Cir. 1996). The Court expresses no opinion whether Baca might ultimately prevail on his § 2241 claims, but his assertion that he is exempt from filing the Bureau of Prison's administrative remedy must be resolved before he can pursue relief under § 2241. See United States v. Wilson, 503 U.S. 329, 335-36 (1992); Bennett v. U.S. Parole Comm'n, 83 F.3d 324, 328 (10th Cir. 1996). On consideration of the Trujillo v. Williams factors, the Court will dismiss Baca's Petition for lack of jurisdiction without prejudice to his right to seek relief under § 2241 in the district where he is confined. See United States v. Buck, No. 99-2129, 194 F.3d 1321, 1999 WL 811685, at *2 (10th Cir. Oct. 12, 1999)(table opinion)(unpublished). See also United States v. Miller, 594 F.3d 1240, 1242 (10th Cir. 2010).
IT IS ORDERED that the Motion for Nunc Pro Tunc Under 28 U.S.C. § 2241 Under Writ of Habeas Corpus in Prison, filed May 14, 2015 (CIV Doc. 1)(CR Doc. 86), is dismissed for lack of jurisdiction without prejudice to Petitioner Nestor Solomon Baca's right to seek relief in the district where he is confined, and final judgment will be entered.
