Burman v. FCI Berlin, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Allah Burman
v. Civil No. 20-cv-982-JD
Warden, Federal Correctional
Institution, Berlin, New Hampshire
O R D E R
Allah Burman, who is an inmate at the Federal Correctional
Institution in Berlin, New Hampshire, (“FCI Berlin”) and is
proceeding pro se, filed a petition for relief under 28 U.S.C.
§ 2241. Following preliminary review, the petition was served
on the warden at FCI Berlin. Burman then filed an “ex parte”
petition under § 2241, which was struck in this case and was
docketed as the initial petition in a separate case.
In response, Burman filed a document titled: “Notice of
Appeal to the Supreme Court of the United States DC.” Doc. no.
14. Burman appeared to challenge the magistrate judge’s
decision to strike the ex parte petition in this case and to
open a new case with that petition as the initiating document.
Burman then filed a motion titled “Motion in Pursuant to Rule 23
- - Custody or Release of a Prisoner in a Habeas Corpus
Proceeding.” In the accompanying letter, Burman stated that he
filed the notice of appeal in error and asked the court to
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disregard the notice. In the motion, Burman demanded an ex
parte hearing for his release from custody while his habeas
petition is pending under “Rule 23(c).”
A. Notice of Appeal
Because Burman filed the notice of appeal (document no. 14)
in error and asks the court to disregard it, the notice will be
struck from the docket.
B. Motion for Release
Burman relies on Federal Rule of Appellate Procedure 23(c)
as the basis for his demand for release pending resolution of
his habeas petition in this case. The Federal Rules of
Appellate Procedure, however, govern procedure in the courts of
appeals, not in the district courts. Fed. R. App. P. 1(a)(1).
Therefore, Rule 23(c) does not apply in this case.
Further, Rule 23(c) applies only when the appellate court
is reviewing an order to release a prisoner. There is no order
in this case to release Burman. Therefore, Rule 23(c) also does
not apply in the circumstances presented here.
Because the motion for release is meritless, there is no
need for a hearing.
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Conclusion
For the foregoing reasons, Burman’s motion for release
(document no. 15) is denied.
The notice of appeal (document no. 14) was filed in error
and is struck from the docket.
SO ORDERED.
______________________________
Joseph A. DiClerico, Jr.
United States District Judge
April 20, 2021
cc: Allah Burman, pro se.
Seth R. Aframe, AUSA.
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