Parker v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Kaniyn Parker
v. Civil No. 17-cv-484-LM
Opinion No. 2019 DNH 148
Robert Hazelwood,
FCI Berlin Warden
O R D E R
Petitioner Kaniyn Parker, who is currently incarcerated at
the Federal Correctional Institution in Petersburg, Virginia,
brought this petition for a writ of habeas corpus while
incarcerated at the Federal Correctional Institution in Berlin,
New Hampshire. See 28 U.S.C. § 2241. His petition challenges
the sentencing court’s application of the career offender
sentencing enhancement to him under the United States Sentencing
Guidelines (“Guidelines”). Parker argues that the sentencing
court improperly counted his three prior state drug convictions
as predicates for the career offender enhancement. On March 19,
2019, this court granted the government’s motion to dismiss as
to one theory of relief raised in Parker’s petition and ordered
the parties to provide further briefing on Parker’s second
theory of relief. Both parties have since filed supplemental
pleadings. For the following reasons, the court dismisses
Parker’s petition without prejudice to his refiling in the
proper jurisdiction.
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BACKGROUND
In 2004, Parker pleaded guilty in the District Court for
the Southern District of Florida to one count of conspiracy to
import five or more kilograms of cocaine in violation of 21
U.S.C. §§ 952(a), 960(b)(1)(B), and 963. United States v.
Parker, No. 1:03-cr-20859-PCH-3 (S.D. Fla.) (ECF nos. 49, 55).
The Presentence Investigation Report (“PSR”) recommended that he
be sentenced as a “career offender” under the Guidelines based
on three prior felony drug convictions in Connecticut occurring
in 1993, 1996, and 2003. See doc. no. 13-4 at 18-22 (PSR);
U.S.S.G. § 4B1.1(b) (career offender enhancement).
Parker objected to this enhancement, arguing that the 2003
conviction should not be considered because it was on appeal and
that the 1996 conviction did not qualify as a “controlled
substance offense” under the Guidelines because it involved
simple possession. See Parker v. United States, 1:05-cv-20844-
PCH (S.D. Fla.) (ECF no. 9 at 49); see also U.S.S.G. § 4B1.2(b)
(defining “controlled substance offense”). The sentencing court
disagreed, found that the state convictions qualified as career
offender predicates, and applied the enhancement. Parker v.
United States, 1:05-cv-20844-PCH (S.D. Fla.) (ECF no. 9 at 49).
It sentenced Parker to 262 months of imprisonment and five years
of supervised release. Parker did not directly appeal his
conviction or sentence, which became final before the Supreme
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Court made the Guidelines advisory in United States v. Booker,
543 U.S. 220 (2005).
Parker subsequently filed two motions for relief under 28
U.S.C § 2255 in the Southern District of Florida, one in 2005
and one in 2013. See Parker v. United States, 1:05-cv-20844-PCH
(S.D. Fla.); Parker v. United States, 1:13-cv-23635-PCH (S.D.
Fla.). Neither motion was successful.
Parker filed the instant petition under 28 U.S.C. § 2241 in
2017. He argues that none of his prior state convictions
qualify as career offender predicates. He contends that his
2003 conviction should not have been considered a predicate
offense because it was pending on appeal in state court at the
time of his federal sentencing (“Claim 1”). Parker also argues
that his 1993 and 1996 convictions do not qualify as predicate
offenses, relying on Mathis v. United States, 136 S. Ct. 2243
(2016) (“Claim 2”). He requests that his sentence be vacated
and he be resentenced without the career offender enhancement.
In 2018, the government moved to dismiss the petition.
While that motion was pending, Parker notified the court that he
had been transferred from Federal Correctional Institution
(“FCI”) Berlin to FCI Petersburg in Virginia. Doc. no. 10. In
March 2019, the court issued an order on the government’s motion
to dismiss. Doc. no. 11. The court granted the government’s
motion to dismiss with respect to Claim 1 and denied it without
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prejudice as to Claim 2. Id. at 15. The court ordered the
parties to provide supplemental briefing regarding Claim 2 and
appointed counsel to represent Parker.1 Both parties then filed
supplemental pleadings.
DISCUSSION
The government argues that the court must dismiss Parker’s
petition without prejudice because the court lacks jurisdiction
to issue the relief Parker has requested. There are two
jurisdictional limitations on a district court’s authority to
grant writs of habeas corpus: the “immediate-custodian rule” and
the “territorial-jurisdiction rule.” Gonzalez v. Grondolsky,
152 F. Supp. 3d 39, 45 (D. Mass. 2016); see also Rumsfeld v.
Padilla, 542 U.S. 426, 445-46 (2004). Both rules emanate from
statutory language.
The immediate-custodian rule provides that the proper
respondent in a habeas challenge to physical confinement is “the
warden of the facility where the prisoner is being held, not the
Attorney General or some other remote supervisory official.”
Padilla, 542 U.S. at 435. This rule derives from the text of 28
U.S.C. § 2242, which provides that the proper respondent is “the
1 The court subsequently granted Parker’s request to appear
pro se with the assistance of appointed counsel as standby
counsel only.
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person who has custody over” the petitioner. 28 U.S.C. § 2242;
see also Gonzalez, 152 F. Supp. 3d at 43. This principle is
echoed in 28 U.S.C. § 2243. It states that the court should
direct a writ to “the person having custody of the person
detained.” 28 U.S.C. § 2243.
Identifying the proper respondent—the immediate custodian—
is crucial because “the writ of habeas corpus does not act upon
the prisoner who seeks relief, but upon the person who holds him
in what is alleged to be unlawful custody.” Gonzalez, 152 F.
Supp. 3d at 43 (internal quotation marks and brackets omitted).
The First Circuit has said that it is “settled beyond cavil that
when a prisoner petitions for a writ of habeas corpus under 28
U.S.C. § 2241, he must name as the respondent the superintendent
of the facility in which he is being held.” Vasquez v. Reno,
233 F.3d 688, 691 (1st Cir. 2000). This is so because that
person “has day-to-day control over the petitioner and is able
to produce [him] before the habeas court.” Id.
Under the territorial-jurisdiction rule,2 the court issuing
the writ must “have jurisdiction over the custodian.” Padilla,
542 U.S. at 442 (internal quotation marks omitted); see also
2 This rule is also referred to as the “district of
confinement rule.” See Padilla, 542 U.S. at 446-47; see id. at
444 (“[T]he district of confinement is synonymous with the
district court that has territorial jurisdiction over the proper
respondent. . . . By definition, the immediate custodian and the
prisoner reside in the same district.”).
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Vasquez, 233 F.3d at 690 (observing that court issuing the writ
“must have personal jurisdiction over the person who holds the
petitioner in custody”). This rule originates from 28 U.S.C.
§ 2241’s language limiting district courts to granting habeas
relief “within their respective jurisdictions.” 28 U.S.C.
§ 2241(a). The Supreme Court has explained that Congress added
this limiting language to the habeas statute in 1867 to avoid
“the inconvenient and potentially embarrassing possibility” that
judges anywhere could issue writs on behalf of petitioners
“distantly removed” from their courts. Padilla, 542 U.S. at 442
(internal quotation marks omitted); see also id. at 445
(explaining that prior decisions did not authorize district
courts to “employ long-arm statutes to gain jurisdiction over
custodians who are outside of their territorial jurisdiction”).
This rule also serves the important purpose of preventing habeas
petitioners from forum shopping. Id. at 447.
In short, in order for a district court to have the power
to issue a writ of habeas corpus, the petitioner must have named
as the respondent the person who has immediate physical custody
of the petitioner and the court must have jurisdiction over that
custodian. See Padilla, 542 U.S. at 446-47. It is important to
note that “jurisdiction” as used in 28 U.S.C. § 2241 does not
connote subject matter jurisdiction. See id. at 434 n.7.
Rather, the immediate-custodian and territorial-jurisdiction
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rules have been likened to rules of personal jurisdiction and
venue. Id. at 452 (Kennedy, J., concurring); see also Moore v.
Olsen, 368 F.3d 757, 759 (7th Cir. 2004) (comparing immediate-
custodian rule to personal jurisdiction and territorial-
jurisdiction rule to venue); Vasquez, 233 F.3d at 690 (observing
that court must have personal jurisdiction over custodian to
issue writ). For that reason, a respondent can waive objections
based on non-compliance with these rules. See Padilla, 542 U.S.
at 452 (Kennedy, J., concurring); Moore, 368 F.3d at 759.
Ordinarily, a petitioner can satisfy the immediate-
custodian and territorial-jurisdiction rules by naming his
warden as the respondent and filing his petition in the district
of his confinement. See Padilla, 542 U.S. at 447. But what
happens when, as here, a petitioner properly files his habeas
petition in the district of confinement against his immediate
custodian and is subsequently transferred outside the court’s
territorial jurisdiction? The Supreme Court has recognized a
limited exception to the jurisdictional rules under these
circumstances. See Ex parte Mitsuye Endo, 323 U.S. 283, 305-06
(1944). But that exception only applies when there is a
respondent within the court’s jurisdiction who has legal
authority to effectuate the prisoner’s release. See id. at 306.
Endo involved a habeas petition filed by a Japanese-
American citizen detained by the War Relocation Authority during
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World War II. See id. at 284-85. In that case, the petitioner
filed her petition in California while detained there. Id. at
285. She was then moved to a detention center in Utah. Id.
The Supreme Court held that the district court in California
retained jurisdiction to grant the writ of habeas corpus on
remand because someone with authority over the petitioner’s
detention (the assistant director of the War Relocation
Authority) was located within the California district court’s
territorial jurisdiction. Id. at 304-05. The Supreme Court has
subsequently explained Endo’s narrow holding as follows:
Endo stands for the important but limited proposition
that when the Government moves a habeas petitioner
after she properly files a petition naming her
immediate custodian, the District Court retains
jurisdiction and may direct the writ to any respondent
within its jurisdiction who has legal authority to
effectuate the prisoner’s release.
Padilla, 542 U.S. at 441 (emphasis added). Put in terms of the
jurisdictional rules discussed above, Endo relaxes the
immediate-custodian rule when the petitioner has been
transferred after properly filing a petition: the court may
still issue the writ even though the petitioner’s immediate
custodian is outside of its jurisdiction so long as a custodian
with power to release the petitioner is within the district
court’s territorial jurisdiction.
Turning to the facts before this court, the court appears
to lack jurisdiction to grant Parker’s requested relief. At the
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time Parker filed his petition, he complied with the immediate-
custodian and territorial-jurisdiction rules: he was
incarcerated at FCI Berlin, and he correctly named FCI Berlin’s
warden as the respondent when he filed his petition in this
court. But circumstances have since changed. Parker is now
incarcerated in FCI Petersburg. His immediate custodian is
therefore the warden of that facility, who is not named as a
respondent in this action. Further, the warden of FCI
Petersburg is not located within the territorial jurisdiction of
this court. And the limited exception laid out in Endo provides
Parker no relief because there is no indication in the record
that a person with the authority to effectuate his release
remains within this court’s territorial jurisdiction. Cf. Endo,
323 U.S. at 305-06. Under these circumstances, this court lacks
the power to grant petitioner the relief he seeks.
Every other district court in this circuit that has
confronted these circumstances—transfer of a petitioner to a
facility outside of the court’s territorial jurisdiction during
the pendency of habeas proceedings—has determined that it lacked
jurisdiction to decide the merits of the petition. Gonzalez,
152 F. Supp. 3d at 44; Mendez v. Martin, C.A. No. 15-408ML, 2016
WL 2849598, at *4 (D.R.I. Apr. 19, 2016), report and
recommendation adopted, No. CV 15-408 ML, 2016 WL 2732182
(D.R.I. May 10, 2016); Aitcheson v. Holder, No. 15-11123-NMG,
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2015 WL 10434871, at *2 (D. Mass. Dec. 31, 2015). District
courts in this circuit that have confronted the same issue in
the context of habeas petitioners held in immigration detention
have reached the same result. Tham v. Adducci, 319 F. Supp. 3d
574, 577 (D. Mass. 2018) (finding that court lacked jurisdiction
over alien’s habeas petition after petitioner was transferred to
facility in different state); Johnson v. Immigration and Customs
Enforcement, 960 F. Supp. 2d 347, 349-50 (D.P.R. 2013)(same);
Rumierz v. I.N.S., No. C.A. 00-359 ML, 2000 WL 1920003, at *3
(D.R.I. Dec. 27, 2000) (same), report and recommendation
adopted, No. 00-cv-00359-ML (D.R.I Feb. 5, 2001). The court
finds these decisions persuasive and well-reasoned. See also
Copley v. Keohane, 150 F.3d 827, 829-30 (8th Cir. 1998)
(concluding appeal was moot when habeas petitioner had been
transferred after filing petition and was no longer in the
custody of anyone over whom the court had jurisdiction).3
3 The court acknowledges that some other jurisdictions apply
a different rule: that, if the petitioner properly files a
petition in the district of confinement, petitioner’s subsequent
transfer does not divest the court of jurisdiction. See, e.g.,
White v. Lamanna, 42 Fed. App’x 670, 671 (6th Cir. 2002); Barden
v. Keohane, 921 F.2d 476, 477 n.1 (3d Cir. 1990); Santillanes v.
U.S. Parole Com’n, 754 F.2d 887, 888 (10th Cir. 1985); Wheeler
v. Rivera, 2:14CV00064 KGB/JTR, 2015 WL 7731473, at *2 n.2 (E.D.
Ark. Apr. 23, 2015). These decisions, however, do not address
the constraints of the immediate-custodian and territorial-
jurisdiction rules. They are not only non-binding on this court
but are also unpersuasive. See Gonzalez, 152 F. Supp. 3d at 46-
47 (recognizing this contrary authority but noting that neither
the First Circuit nor any other district court in this circuit
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Parker argues that, if the court finds that his petition
must be dismissed for lack of jurisdiction, the court should
find that this case involves extraordinary circumstances and
allow Parker to substitute the Attorney General in as the
respondent. He contends that the extraordinary circumstance of
prejudicial delay exists here because his petition was pending
in this court for approximately 16 months before he was
transferred and the court ruled on the government’s motion to
dismiss.
Parker makes a good point. However, as explained above,
the Attorney General is typically not the proper respondent in a
habeas petition because he does not have immediate, day-to-day
control of the prisoner. See Padilla, 542 U.S. at 435 (“[T]he
default rule is that the proper respondent is the warden of the
facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.”). However,
the First Circuit has recognized that “there may be
extraordinary circumstances in which the Attorney General
appropriately might be named as a respondent.” Vasquez, 233
has adopted that approach); Mendez, 2016 WL 2849598, at *5
(same).
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F.3d at 696.4 Such extraordinary circumstances may include when
a petitioner is being detained at an unknown location or when
the government has repeatedly moved the petitioner with an
intent to manipulate jurisdiction. Id.
It is regrettable that Parker’s petition was pending for
such an extended time before this court. But Parker has not
identified, and this court has not found, any authority
demonstrating that delay in a ruling on a habeas petition is an
extraordinary circumstance warranting exception to the
applicable jurisdictional rules. Cf. Padilla, 542 U.S. at 454
(Kennedy, J., concurring) (discussing recognized and potential
exceptions to jurisdictional rules governing habeas petitions).
Nor has Parker identified facts fitting this case into any of
the recognized extraordinary circumstances warranting exception
to the jurisdictional rules. Accordingly, the court does not
find this case to present extraordinary facts justifying the
substitution of the Attorney General as the proper respondent.5
4 The court acknowledges that the First Circuit stated this
rule in the context of an alien habeas petition. See Vasquez,
233 F.3d at 696. The court assumes for the sake of argument
that the same holds true in the prisoner context.
5 Although not raised by Parker, the court notes that the
government has not waived its jurisdictional arguments. Parker
was not transferred until after the government filed its motion
to dismiss. See Gonzalez, 152 F. Supp. 3d at 46 n.5 (finding no
waiver when petitioner was transferred after respondent filed
motion to dismiss); cf. Gooden v. Gonzales, 162 Fed App’x 28,
29-30 (2d Cir. 2005) (addressing merits of habeas petition when
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Given the above, this court lacks jurisdiction to provide
Parker the relief he requests. Any writ issued by this court
would be ineffectual because Parker’s immediate custodian is
outside the reach of this court’s territorial jurisdiction. The
question remains how this court should dispose of this action.
The court is not inclined to dismiss Parker’s petition with
prejudice. This is not a case where a “peek” at the merits
reveals that the petition is so meritless that, even though the
court lacks jurisdiction, dismissing the petition with prejudice
is the most efficient resolution of the case. See Mendez, 2016
WL 2849598, at *7 (citing Phillips v. Seiter, 173 F.3d 609, 610-
11 (7th Cir. 1999), which held that court considering whether to
transfer action may take a “peek” at the merits to determine
whether case is a “sure loser” in transferee jurisdiction).
As this court explained in its prior order on the motion to
dismiss, the threshold issue presented by Parker’s petition is
whether the court has savings clause jurisdiction under 28
U.S.C. § 2255(e) to consider his 28 U.S.C. § 2241 petition. See
government did not challenge appropriateness of respondent or
venue). Furthermore, although a defendant may waive personal
jurisdiction and venue, it is not clear to this court that a now
improper respondent (the warden of FCI Berlin) could waive those
jurisdictional requirements on behalf of a nonparty proper
respondent (the warden of FCI Petersburg). See Gonzalez, 152 F.
Supp. 3d at 46 n.5 (expressing skepticism about whether a
respondent may waive territorial-jurisdiction limitation for a
nonparty).
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doc. no. 11 at 7-9, 13-14. Circuits are split regarding whether
a district court can exercise savings clause jurisdiction over a
petition like Parker’s that challenges a career offender
sentencing enhancement. Compare Hill v. Masters, 836 F.3d 591,
599 n.6 & 599-600 (6th Cir. 2016) (recognizing savings clause
jurisdiction for prisoners who were sentenced under pre-Booker
Guidelines and challenge career offender enhancement and noting
circuit split on the issue), with Bradford v. Tamez (In re
Bradford), 660 F.3d 226, 230 (5th Cir. 2011) (holding that claim
of actual innocence of career offender enhancement is not the
type of claim that warrants review under § 2241). Notably, the
Fourth Circuit, in which FCI Petersburg sits, appears to
recognize that courts can exercise savings clause jurisdiction
over habeas petitions that raise sentencing enhancement errors.
See United States v. Wheeler, 886 F.3d 415, 428-29 (4th Cir.
2018) (finding savings clause jurisdiction existed for
petitioner’s claim that his statutory mandatory minimum sentence
was erroneously increased based on prior conviction). Given the
state of the law governing savings clause jurisdiction for the
type of claim Parker raises, the court will not dismiss Parker’s
petition with prejudice. See Mendez, 2016 WL 2849598, at *7
(taking “peek” at merits and concluding that possible merit of
some of petitioner’s arguments supported dismissal without
prejudice).
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In the interests of justice and efficiency, the court would
prefer to transfer this action to the Eastern District of
Virginia, rather than dismiss it without prejudice.
Unfortunately, this court lacks the power to do so under any of
the applicable transfer statutes, which all limit transfer to a
district where the action could have been brought in the first
instance. See 28 U.S.C. §§ 1404(a), 1406(a), 1631; Hoffman v.
Blaski, 363 U.S. 335, 342-44 (1960). Because Parker was
incarcerated at FCI Berlin at the time he filed this petition,
this action could not have originally been brought in Virginia.
Parker’s petition before this court is now moot and must be
dismissed without prejudice to his refiling in the Eastern
District of Virginia. See Gonzalez, 152 F. Supp. 3d at 44, 47;
see also Jones v. Cunningham, 371 U.S. 236, 241 (1963) (holding
petition for habeas relief against prison superintendent moot
because superintendent “no longer held petitioner in his
custody” as he had been paroled); Copley, 150 F.3d at 829-30
(finding appeal moot when petitioner was no longer in custody of
anyone over whom court retained jurisdiction).
Although Parker has already been seeking habeas relief for
some time, he will not be unduly prejudiced by the dismissal of
his petition without prejudice. There is still time for a court
with jurisdiction to reach the merits of Parker’s petition
before his projected release date in November 2022.
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CONCLUSION
For the foregoing reasons, the court dismisses Parker’s
petition for a writ of habeas corpus (doc. no. 1) without
prejudice to his refiling against a proper respondent in the
United States District Court for the Eastern District of
Virginia.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
September 9, 2019
cc: Counsel of Record
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