MASTROIANNI, U.S.D.J.
Esteban Gonzalez ("Petitioner"), a federal prisoner formerly in custody at FMC Devens in Ayer, Massachusetts, filed a self-prepared petition for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner seeks a two-hundred and sixty-five-day reduction of his federal sentence for time spent "at liberty" after state officials erroneously released him instead of transferring him directly to federal custody to continue serving his concurrent federal sentence.
Jeffrey Grondolsky ("Respondent"), Warden of Federal Medical Center — Devens, filed a motion to dismiss. On July 15, 2015, however, the court converted Respondent's motion to dismiss into a motion for summary judgment because Respondent submitted materials which went out-side the facts alleged in the petition. See Gonzalez v. Grondolsky, 2015 WL 4274183, at *2-3 (D.Mass. July 15, 2015). The court provided Petitioner with an opportunity to supplement the record, which he did. (Dkt. No. 28.) Respondent thereafter filed his own supplemental memorandum. (Dkt. No. 31.) During this process, the court discovered that Petitioner no longer was detained at FMC Devens. (Dkt. Nos. 26, 27.) He is now housed in a federal prison camp in Yankton, South Dakota. (Dkt. No. 28.) In light of this new information, the court will dismiss the petition without prejudice to Petitioner refiling in the United States District Court for the District of South Dakota and naming the warden of the Yankton facility as the respondent.
On July 10, 2006, Petitioner was arrested in Kleberg County, Texas for violation of probation in Case No. 01-CFR-201. On July 20, 2006, he was temporarily transferred to federal custody to face federal charges. On December 20, 2007, Petitioner was sentenced for the federal charges in the United States District Court for the Southern District of Texas to a 160-month term of imprisonment in United States v. Gonzalez, No. 06-CR-00556-002. The sentencing court ordered the federal sentence to run concurrently with any state sentence imposed in Case No. 01-CRF-201. On March 6, 2008, Petitioner was returned to the custody of state officials. Thereafter, on May 29, 2008, Petitioner was sentenced in Kleberg County, Texas, in Case No. 01-CRF-201, to a five-year term of imprisonment to be served in the Texas Department of Criminal Justice. The US Marshals Service placed a detainer on Petitioner,
On July 25, 2008, while in the custody of the Texas Department of Criminal Justice, Petitioner was arrested by Nueces County, Texas officials, in connection with Case No. 06-1906-G. On October 29, 2008, Petitioner satisfied the sentence in Case No. 01-CFR-201 but remained in Nueces County custody due to Case. No. 06-1906-G. On November 13, 2008, Petitioner was sentenced in Case No. 06-1906-G to a twenty-year term of imprisonment with credit for time served. On February 2, 2009, Petitioner was returned to the custody of the Texas Department of Criminal Justice from Nueces County. On June 28, 2012, Petitioner was paroled from his state sentence in Case No. 06-1906-G and erroneously released; he should have been placed directly into federal custody. On March 21, 2013, federal officials arrested Petitioner for service of his federal sentence.
The Federal Bureau of Prisons ("BOP") has computed Petitioner's federal sentence as follows. Petitioner received credit for the time he spent in state custody from July 10, 2006, the date of his initial arrest by state officials, through December 19, 2007. His federal term commenced on December 20, 2007, the date it was imposed, in order to effectuate concurrent service as ordered by the sentencing court, until his release from state custody. However, the BOP has not credited Petitioner with the 265 days between his release from state custody on June 28, 2012 and his federal arrest on March 21, 2013, because he was not in custody during that time and, therefore, it is considered "inoperative time." Petitioner's projected release date, assuming he receives all Good Conduct Time available to him under 18 U.S.C. § 3634(b), is November 11, 2018.
On October 10, 2014, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. No. 8.) After Respondent failed to respond, despite two service orders issued by the court on October 10, 2014 and January 9, 2015 directing him to do so,
In light of Petitioner's transfer outside of this district, the court deems it necessary to address the propriety of continuing
The federal habeas statute provides that the appropriate respondent to a habeas petition is "the person who has custody over" the petitioner. 28 U.S.C. § 2242. Similarly, under 28 U.S.C. § 2243, "the writ, or order to show cause shall be directed to the person having custody of the person detained." In addition, under 28 U.S.C. § 2241(a), district courts are limited to granting habeas relief "within their respective jurisdictions."
This statutory language, as well as the jurisprudence governing federal habeas petitions, forms the basis for two distinct, but often overlapping, rules addressed by the Supreme Court in Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004): the immediate-custodian rule, and the territorial-jurisdiction rule. Under the first, "in habeas challenges to present physical confinement," which is the type of challenge Petitioner asserts here, "the default rule is that the proper respondent is the warden of the facility where the prisoner is being held." Id. at 435, 124 S.Ct. 2711.
Id. at 495, 93 S.Ct. 1123 (quoting In the Matter of Jackson, 15 Mich. 417, 439-40 (1867)); see also Vasquez, 233 F.3d at 691 ("The warden is the proper custodian because he has day-to-day control over the petitioner and is able to produce the latter before the habeas court.").
Under the territorial-jurisdiction rule, derived from the statutory language limiting district courts to granting habeas relief "within their respective jurisdictions," 28 U.S.C. § 2241(a), "the court issuing the writ [must] have jurisdiction over the custodian." Padilla, 542 U.S. at 442, 124 S.Ct. 2711 (quoting Braden, 410 U.S. at 495, 93 S.Ct. 1123). The Supreme Court has explained that "Congress added the limiting clause — `within their respective jurisdictions' — to the habeas statute in 1867 to avert the `inconvenient [and] potentially embarrassing' possibility that `every judge anywhere [could] issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat.'" Id. (quoting Carbo v. United States, 364 U.S. 611, 617, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961)); see also Braden, 410 U.S. at 496,
The Supreme Court in Braden created an exception to the traditional "district of confinement" rule, holding that challenges to future confinement may be brought against prospective, or "legal," custodians residing within the court's jurisdiction despite the petitioner's absence from the district at the time. Braden, 410 U.S. at 495, 499-500, 93 S.Ct. 1123. However, that exception and the holding that the territorial-jurisdiction clause "requires nothing more than that the court issuing the writ have jurisdiction over the custodian," id. at 495, 93 S.Ct. 1123, did not upend, as a practical matter, the traditional "district of confinement" rule for "core" habeas challenges to present physical confinement. Padilla, 542 U.S. at 444, 124 S.Ct. 2711. As the Supreme Court explained in Padilla:
Id. Moreover, the Supreme Court in Padilla rejected the "long-arm approach to habeas jurisdiction," explaining that "Braden in no way authorizes district courts to employ long-arm statutes to gain jurisdiction over custodians who are outside their territorial jurisdiction." Id. at 445, 124 S.Ct. 2711; see also id. at 444, 124 S.Ct. 2711 (stating that Braden "did not indicate that a custodian may be served with process outside of the district court's territorial jurisdiction"). The Supreme Court therefore reaffirmed that "the custodian's absence from the territorial jurisdiction of the district court is fatal to habeas jurisdiction." Id. at 445, 124 S.Ct. 2711 (citing Schlanger v. Seamans, 401 U.S. 487, 500, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971)).
With all that said, there is a critical flaw with this action in its current form. As the only named respondent is the warden of FMC Devens, and as Petitioner has been transferred to another federal facility and is in the custody of a different warden, this action is now moot. See Jones v. Cunningham, 371 U.S. 236, 241, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (explaining that "the dispute between the petitioner and the named respondent in each case had become moot because that particular respondent no longer held the petitioner in his custody" (citing United States ex rel. Lynn v. Downer, 322 U.S. 756, 64 S.Ct. 1263, 88 L.Ed. 1585 (1944), United States ex rel. Innes v. Crystal, 319 U.S. 755, 63 S.Ct. 1164, 87 L.Ed. 1708 (1943), and Weber v. Squier, 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209 (1942))); see also Ex parte Endo, 323 U.S. 283, 305, 65 S.Ct. 208, 89 L.Ed. 243 (1944) (describing the holding in Crystal, 319 U.S. 755, 63 S.Ct. 1164, where the Supreme Court denied certiorari based on mootness because the petitioner was no longer in the respondent's custody); Copley v. Keohane, 150 F.3d 827, 830 (8th Cir.1998). Here, as was true in Crystal, "[o]nly an order directed to the warden of the [new facility] could effectuate his discharge."
Granted, the Supreme Court in Ex parte Endo created an exception to this mootness rule for cases in which the petitioner properly filed the habeas petition against the immediate custodian and thereafter was transferred outside the district court's territorial jurisdiction, but the exception only applies "where a person in whose custody [the petitioner] is remains within the district." Ex parte Endo, 323 U.S. at 306, 65 S.Ct. 208; see also Jones, 371 U.S. at 243-44, 83 S.Ct. 373 ("[A] District Court did not lose its jurisdiction when a habeas petitioner was removed from the district so long as an appropriate respondent with custody remained." (emphasis added) (citing Ex parte Endo, 323 U.S. at 304-307, 65 S.Ct. 208)); Copley, 150 F.3d at 830 ("It is true that, if a district court has proper jurisdiction when a habeas petition is filed, as is the case here, a subsequent transfer of the prisoner will not defeat habeas jurisdiction, but only `so long as an appropriate respondent with custody remain[s]' in the district." (quoting Jones, 371 U.S. at 243-44, 83 S.Ct. 373)). In Ex parte Endo, a case involving a Japanese-American citizen detained in California by the War Relocation Authority ("WRA"), the Supreme Court explained that there was "no suggestion that there is no one within the jurisdiction of the District Court who is responsible for the detention of appellant and who would be an appropriate respondent." Ex parte Endo, 323 U.S. at 304, 65 S.Ct. 208. In fact, the Supreme Court noted that it was specifically "advised by the Acting Secretary of the Interior that if the writ issues and is directed to the Secretary of the Interior or any official of the War Relocation Authority (including an assistant director whose office is at San Francisco, which is in the jurisdiction of the District Court), the corpus of appellant will be produced and the court's order complied with in all respects." Id. at 304-05, 65 S.Ct. 208 (emphasis added); see Padilla, 542 U.S. at 440, 124 S.Ct. 2711 ("We held that, under these circumstances, the assistance director of the WRA, who resided in the Northern District [of California], would be an `appropriate respondent' to whom the District Court could direct the writ."). It was on this basis that the Supreme Court held the case was "not moot." Ex parte Endo, 323 U.S. at 305, 65 S.Ct. 208. Here, in contrast, there is no indication that any official with custody over, or legal authority to release, Petitioner remains in this district.
Moreover, while these two limits on habeas "jurisdiction" (the immediate-custodian and territorial-jurisdiction rules) are not jurisdictional "in the sense of subject-matter jurisdiction," Padilla, 542 U.S. at 434 n. 7, 124 S.Ct. 2711; id. at 451, 124 S.Ct. 2711 (Kennedy, J., concurring), and thus likely can be waived in appropriate cases, the precise nature of these rules is not entirely clear. Id. at 453, 124 S.Ct. 2711 (Kennedy, J., concurring) ("It is difficult to describe the precise nature of these restrictions on the filing of habeas petitions, as an examination of the Court's own opinions in this area makes clear."). Still, regardless of how these rules are characterized, the court must consider whether the named respondent has the power to provide the relief sought. See Smith v. Idaho, 392 F.3d 350, 355 n. 3 (9th Cir.2004) ("[W]hen a habeas petitioner has failed to name the proper respondent pursuant to § 2242, we must ask sua sponte whether the respondent who is named has the power to order the petitioner's release. If not, the court may not grant effective relief, and thus should not hear the case unless
The court also does not believe it is appropriate to sua sponte substitute Petitioner's new warden as the respondent, in light of the territorial-jurisdiction limitation. Cf. Ex parte Endo, 323 U.S. at 306, 65 S.Ct. 208 ("We only hold that the District Court acquired jurisdiction in this case and that the removal of Mitsuye Endo did not cause it to lose jurisdiction where a person in whose custody she is remains within the district." (emphasis added)). There is a significant difference, in the court's view, between a respondent's waiver of this limitation and a court's decision to substitute as a respondent a custodian located outside its territorial jurisdiction on its own accord.
The court's decision that this action should not proceed here is also in the interest of justice. See Padilla, 542 U.S. at 453, 124 S.Ct. 2711 (Kennedy, J., concurring) (explaining that even "[w]hen an exception applies ... courts must still take into account the considerations that in the ordinary case are served by" these habeas jurisdiction limitations). Petitioner is now located far from this court. And the court is not prepared to say, based on the submissions, that an evidentiary hearing is unnecessary. Thus, if this case were to proceed here, there is a real possibility that Petitioner would need to be transported from South Dakota to Massachusetts. See Braden, 410 U.S. at 493-94, 500, 93 S.Ct. 1123 (discussing "traditional venue considerations," including the location of witnesses and convenience of the parties). The court also notes that if this action were to proceed here, it would likely be required to apply the comparatively stringent First Circuit standard for invoking the common law "time at liberty doctrine." See Espinoza v. Sabol, 558 F.3d 83, 88-90 (1st Cir.2009). Under these circumstances, when the delay in adjudicating this case is in some respects attributable to the Government's non-responsiveness, the court does not believe it is appropriate for the Government to benefit from the legal standards of the jurisdiction of Petitioner's prior custodian.
The court recognizes that many courts have interpreted Ex parte Endo much more broadly than this court, holding that despite a petitioner's transfer, the original court should retain jurisdiction and decide the case, apparently regardless of whether an appropriate respondent remains in the district. See, e.g., Wheeler v. Rivera, 2015 WL 7731473, at *2 n. 2 (E.D.Ark. April 23, 2015) (collecting cases). However, neither the First Circuit nor any district courts within this circuit, as far as this court is aware, have adopted such a broad reading of Ex parte Endo.
In the interest of efficiency, the court would be inclined to transfer this action to the District of South Dakota, rather than dismiss it without prejudice. However, the court lacks the authority to do so under the transfer statutes, all of which limit transfer to a district where the action could have been brought when it was initially commenced. 28 U.S.C. §§ 1404(a), 1406(a), 1631; see Hoffman v. Blaski, 363 U.S. 335, 342-44, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). When Petitioner filed the petition, of course, he could have only brought the action in this district, as his immediate custodian was located here; South Dakota was not an option. Nevertheless, dismissal without prejudice so Petitioner can refile in South Dakota against an appropriate respondent should not significantly prejudice him. "There is no statute of limitations for federal prisoners filing habeas petitions pursuant to 28 U.S.C. § 2241." Wooten v. Cauley, 677 F.3d 303, 306 (6th Cir.2012); Morales v. Bezy, 499 F.3d 668, 672 (7th Cir.2007); see also Day v. McDonough, 547 U.S. 198, 202 n. 1, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006). Moreover, there is still time to adjudicate the merits of Petitioner's claim before his allegedly appropriate release date.
For these reasons, the court DISMISSES Petitioner's petition for writ of habeas corpus WITHOUT PREJUDICE to Petitioner refiling in the United States District Court for the District of South Dakota against an appropriate respondent.
It is So Ordered.
