Bashir v. US Attorney General

• Decision Date: 10 March 1981
• Docket Number: Civ. A. No. 81-0059-R.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Abdul Hakim BASHIR a/k/a William T. Fullwood v. U. S. ATTORNEY GENERAL et al.

508 F. Supp. 1108

Abdul Hakim BASHIR a/k/a William T. Fullwood v. U. S. ATTORNEY GENERAL et al.

Civ. A. No. 81-0059-R.

United States District Court, E. D. Virginia, Richmond Division.

March 10, 1981.

Abdul Hakim Bashir, pro se.

No Asst. U. S. Atty. assigned.

MEMORANDUM AND ORDER

WARRINER, District Judge.

On 7 January 1980, Abdul Hakim Bashir, also known as William T. Fullwood, filed this pro se habeas corpus action under 28 U.S.C. § 2241 in the U.S. District Court for the Middle District of Pennsylvania. By order of 13 January 1981, the case was transferred to the U.S. District Court for the Eastern District of Virginia. For the reasons set forth below, the Court believes that the transfer was improper, that this Court may not proceed to the merits of petitioner's claim, and that the case should be transferred back to the Middle District of Pennsylvania.

Background

On 14 September 1979, the U.S. District Court for the District of Columbia sentenced petitioner for a violation of Title 33, Section 402 of the D.C.Code. Consequently, petitioner was removed from the District of Columbia Jail, where he was being detained for violation of parole, and was placed in the U.S. Penitentiary in Lewisburg, Pennsylvania. Petitioner filed this action in the Middle District of Pennsylvania on 7 January 1980, claiming that he was entitled to a hearing prior to his removal from the District of Columbia Jail to the U.S. Penitentiary in Lewisburg. Petitioner named the U.S. Attorney General and the Warden of the U.S. Penitentiary in Lewisburg as respondents. Respondents' Answer was filed on 24 March 1980.

On 2 December 1980, petitioner informed the District Court in Pennsylvania that he was scheduled to be transferred to the Federal Correctional Institution at Petersburg, Virginia. Petitioner sought approval of his transfer pursuant to a policy of the Lewisburg officials that inmates with pending cases obtain the approval of either the District Court or the U.S. Attorney prior to their transfers.

On 29 December 1980, the District Court in Pennsylvania approved the proposed transfer. Petitioner was advised, however, that:

a federal district court has jurisdiction to entertain a petition for a writ of habeas corpus only if it is sitting in the district where either the prisoner is confined or the custodian is located. Accordingly, since the proposed transfer would take you out of the Middle District of Pennsylvania, the Court would have no choice but to transfer the case to the Eastern District of Virginia, the district of confinement, for disposition by that Court.

Letter to petitioner, filed 16 December 1980. In response to this advice, petitioner requested that the case be transferred to the Eastern District of Virginia. Amended Affidavit, filed 23 December 1980. Citing 28 U.S.C. § 1404(a), the District Court granted the motion to transfer on 13 January 1981.

The Transfer

The order of 13 January 1981 reflects the Pennsylvania District Court's belief both that the Eastern District of Virginia was a proper transferee court and that this action could not proceed in the Middle District of Pennsylvania without petitioner's physical presence. With the utmost respect and with great reluctance, this Court has come to contrary conclusions regarding both points of law.

A.

28 U.S.C. § 1404, provides in part:

Change of Venue: (a) For the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

(Emphasis added). The underlined words limit the power of the transferor court to relocate an action. It is well-settled that a transfer to another court, under § 1404(a), is proper only if the plaintiff had an unqualified right to bring the action in the transferee court at the time the original action was commenced. In Shutte v. Armco Steel Corporation, 431 F.2d 22 (3rd Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808, the Court was asked to grant a writ of mandamus to compel a judge of the U.S. District Court for the Western District of Pennsylvania to vacate his order transferring an action to the Western District of Missouri. Commenting on the transfer order, the Third Circuit stated:

No mention was made of Subsection 1404(a)'s limitating provision to the effect that a transfer is authorized by the statute only if the plaintiff had an "unqualified right" to bring the action in the transferee forum at the time of the commencement of the action; i. e., venue must have been proper in the transferee district and the transferee court must have had power to command jurisdiction over all of the defendants. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). Prior to ordering a transfer the district court must make a determination that the suit could have been rightly started in the transferee district. Jones v. Valley Welding Supply Company, 303 F.Supp. 9 (W.D.Pa.1969). If there is a "real question" whether a plaintiff could have commenced the action originally in the transferee forum, Leyden v. Excello Corporation, 188 F.Supp. 396 (D.N.J. 1960), it is evident that he would not have had an unqualified right to bring his cause in the transferee forum.

Id., at 24. The requested writ of mandamus was issued, directing the respondent judge to vacate and set aside his transfer order.

As stated in Shutte, petitioner's right to bring the action in the transferee court is tested as of the time the action was commenced in the transferor court, not as of the time of the transfer. In Hoffman v. Blaski, supra, the petitioners argued that "the phrase `where it might have been brought' should be held to relate not only to the time of the bringing of the action, but also to the time of the transfer." 363 U.S. at 343, 80 S.Ct. at 1089, 4 L.Ed.2d at 1261. That argument was rejected by the Supreme Court:

We think the dissenting opinion of Judges Hastie and McLaughlin in Paramount Pictures, Inc. v. Rodney, 186 F.2d 111 (CA 3d Cir.), correctly answered this contention:

`But we do not see how the conduct of a defendant after suit has been instituted can add to the forums where "it might have been brought." In the normal meaning of words this language of § 1404(a) directs the attention of the judge who is considering a transfer to the situation which existed when suit was instituted.'

363 U.S. at 343, 80 S.Ct. at 1089, 4 L.Ed.2d at 1261. Thus, this action should not have been transferred to the Eastern District of Virginia unless petitioner could have brought the petition here on 7 January 1980, the date upon which it was filed in the Middle District of Pennsylvania.

This action was brought under 28 U.S.C. § 2241¹, which provides, in part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.

(Emphasis added). Because of the jurisdictional limitation, the Eastern District of Virginia is without power to grant a writ of habeas corpus unless it has jurisdiction over the applicant's custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973).

Read literally, the language of § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ `within its jurisdiction' requiring that the prisoner be brought before the court for a hearing on his claim, or requiring that he be released outright from custody, even if the prisoner himself is confined outside the court's territorial jurisdiction.

410 U.S. at 494-495, 93 S.Ct. at 1129-1130, 35 L.Ed.2d at 452-453.

Petitioner's immediate custodian on 7 January 1980 was respondent Fenton, the Warden of the U.S. Penitentiary in Lewisburg, Pennsylvania. Nothing in the record suggests that respondent Fenton was, on 7 January 1980, amenable to the process of this Court. Further, there is some authority holding that respondent Fenton was a necessary party at the time of commencement of this action.

28 U.S.C. § 2242 requires that the application for the Great Writ "shall allege ... the name of the person who has custody over the applicant ...;" and 28 U.S.C. § 2243 provides that the writ or order to show cause why the writ should not be granted "shall be directed to the person having custody of the person detained."

In Wales v. Whitney, 1885, 114 U.S. 564, 574, 5 S.Ct. 1050, 1055, 29 L.Ed. 277, 280, the Supreme Court noted that the Congressional legislation relating to the writ

contemplate sic a proceeding against some person who has the immediate custody of the party detained with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary.

Thus, the respondent "must be the petitioner's immediate custodian and ... must have the power to produce the body of the petitioner before the court and, ultimately, to discharge him from custody." Citation omitted.

Mounce v. Knighten, 503 F.2d 967, 969 (5th Cir. 1974). Accord: Gaito v. Strauss, 368 F.2d 787, 788 (3rd Cir. 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 139 (1967) ("District Court could not treat his civil rights complaint as a petition for habeas corpus since the warden of the state prison in which the appellant was incarcerated was not a party..."); Billiteri v. U. S. Board of Parole, 541 F.2d 938, 948 (2nd Cir. 1976) (Court lacked jurisdiction where Warden of Federal Penitentiary at Lewisburg, Pennsylvania, where Billiteri was incarcerated, was never named as a respondent in the proceedings).

Moreover, even if the Court adopts a broader interpretation of the term "custodian," jurisdiction over this action was lacking on 7 January 1980. In ...