Moore v. Olson

Decision Date17 May 2004
Docket NumberNo. 03-4053.,03-4053.
Citation368 F.3d 757
PartiesFrank MOORE, Petitioner-Appellant, v. Keith E. OLSON, Warden, United States Penitentiary, Terre Haute, Indiana, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Leonard C. Goodman (argued), Chicago, IL, for Petitioner-Appellant.

LaShonda A. Hunt (argued), Office of the United States Attorney, Chicago, IL, for Respondent-Appellee.

Before EASTERBROOK, MANION, and WILLIAMS, Circuit Judges.

EASTERBROOK, Circuit Judge.

The caption of this opinion reveals a problem: federal judges are entitled to issue writs of habeas corpus "within their respective jurisdictions", 28 U.S.C. § 2241(a), and Indiana lies outside the Northern District of Illinois. When the case began, the respondent was the Warden of the United States Penitentiary at Leavenworth, Kansas, which is not even within the Seventh Circuit. Surprisingly, the district court held that it was nevertheless authorized to adjudicate the petition. 284 F.Supp.2d 1092 (N.D.Ill.2003). Almost as surprisingly, the respondent, having contested jurisdiction vigorously in the district court, ignored that subject on appeal, apparently believing that a victory on the merits (the district judge denied Moore's petition) was superior to a jurisdictional dismissal. We raised at oral argument the question whether a custodian located outside a judicial district is authorized to consent to a decision on the merits. See Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948) (holding that because the parties' location is a "jurisdictional" question on collateral review, a custodian's waiver or forfeiture is ineffectual). In post-argument filings, Moore's custodian switched sides again, insisting that the district court lacked subject-matter jurisdiction and that the issue therefore can be neither waived nor forfeited. We conclude, to the contrary, that after Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), which overruled Ahrens, the location of a collateral attack is best understood as a matter of venue, which means that both waiver and forfeiture are possible.

The Parole Commission revoked Moore's parole after concluding that he had committed a murder. While an administrative appeal was pending, and Moore was held at the Metropolitan Correctional Center in Chicago, he filed a petition under § 2241(a). The district court correctly dismissed this petition as premature, for Moore had yet to exhaust his administrative remedies. By the time the Commission's decision became final, Moore was at USP Leavenworth. Instead of filing a petition in Kansas, however, Moore asked the judge to reopen the proceeding in Illinois. The judge obliged and held that this maneuver enabled the court to assert jurisdiction over Moore's new custodian. That decision is hard to reconcile with the principle that the litigation must occur in the district of the prisoner's custody. See, e.g., al-Marri v. Rumsfeld, 360 F.3d 707 (7th Cir.2004). A prisoner transferred while litigation is pending need not re-file in the new district, see Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944), but no suit was pending when Moore left Illinois for Kansas. Filing new pleadings in a long-dismissed action — and naming a different respondent to boot — does not alter the fact that district judges may resolve claims under § 2241 only when the custodian is local. Perhaps the old action could have been revived had Moore remained in Chicago, but an action against a different custodian is a new action, which should have commenced in Kansas.

Having prevailed on the merits, however, the Warden of Leavenworth initially elected not to contest this issue on appeal. He switched sides in a post-argument memorandum. This is not the only problem linked to the location of Moore's custody. The Department of Justice, which both operates the Federal Bureau of Prisons and represents the warden, appears to have disregarded Fed. R.App. P. 23(a), which requires judicial approval of transfer during appellate review of a proceeding seeking a writ of habeas corpus. Moore has been moved to USP Terre Haute without any judge's permission. Counsel also violated Circuit Rule 43, which requires notice to this court that a prisoner has been moved and substitution of the new custodian. The Department's brief and post-argument memorandum both identify N.L. Conner, the Warden of Leavenworth, as the respondent even though Moore was transferred to Terre Haute earlier. Moore has not sought return to Leavenworth, and no other remedy would be appropriate, but the performance of the Department of Justice in this court is a disappointment.

Defendants are entitled to waive any shortcomings in venue or jurisdiction over the person; these issues also may be forfeited by failure to present them at the proper time. Defects in subject-matter jurisdiction, however, may not be waived or forfeited. Courts often use the word "jurisdiction" when referring to § 2241(a)'s requirement — understandably, as the word appears in the statute — but without distinguishing among subject-matter jurisdiction, jurisdiction over the person of the custodian, and the court's territorial extent (a species of venue). Ahrens must have assumed that the issue is one of subject-matter jurisdiction, as it said that the issue could not be waived, but did not explain why. Braden overruled Ahrens but did not distinguish between rejecting its technical holding — which was that the presence of the detained person (in addition to the custodian) within the territory of the federal judicial district is essential — and disapproving its assumption that the locus of the suit concerns subject-matter jurisdiction. In between these two decisions, Schlanger v. Seamans, 401 U.S. 487, 490-91, 91 S.Ct. 995, 28 L.Ed.2d 251 (1971), referred to the matter as one of "territorial jurisdiction", which implies that the issue is one of venue rather than either subject-matter or personal jurisdiction, but once again the Court did not explain why.

Section 2241(a) uses the word "jurisdiction" in a way that suggests equivalence to "the territory within the judicial district." Braden holds that the detained person need not be in that district. This decision allows a petitioner serving consecutive sentences (or facing trial in another state) to challenge his future custody as well as his current custody, provided that the litigation takes place where the custodian may be found. We did not need to choose in al-Marri among the ways to characterize this requirement. Braden suggests, however, that it is a matter of both jurisdiction over the person (the custodian must be within reach of the district court's process) and venue, with § 2241 taken as a special venue rule superseding 28 U.S.C. § 1391(e) to the extent of any conflict. That is the implication not only of § 2241(a) but also of § 2241(d), which provides that, when a prisoner sentenced within one part of a state that has multiple federal districts is being held outside that district but still within that state, the petition may be filed in the district where the sentence was imposed. Section 2241(d) is so clearly a special venue provision that it becomes jarring to read § 2241(a) as a rule of subject-matter jurisdiction; if it were so read, it would nullify the effect of § 2241(d)....

To continue reading

Request your trial
126 cases
  • Rumsfeld v. Padilla
    • United States
    • U.S. Supreme Court
    • June 28, 2004
    ...that the analysis is guided by "traditional venue considerations" and "traditional principles of venue"); see also Moore v. Olson, 368 F. 3d 757, 759-760 (CA7 2004) (suggesting that the territorial-jurisdiction rule is a venue rule, and the immediate-custodian rule is a personal jurisdictio......
  • Mathison v. Berkebile
    • United States
    • U.S. District Court — District of South Dakota
    • December 20, 2013
    ...petition is best understood as a question of personal jurisdiction or venue.” 542 U.S. at 451, 124 S.Ct. 2711 ( citing Moore v. Olson, 368 F.3d 757, 759–760 (7th Cir.2004) (suggesting that the territorial-jurisdiction rule is a venue rule, and the immediate-custodian rule is a personal-juri......
  • Wilburn v. State (In re S.J.W.)
    • United States
    • Oklahoma Supreme Court
    • April 25, 2023
    ...challenging the district court's subject matter jurisdiction only concern those which allege a defect in the court's adjudicatory competence. Id. (citing Kontrick v. 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). But the word "jurisdiction" can also refer to the territory of the judi......
  • Bourgeois v. Watson, 20-1891
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • October 6, 2020
    ...Cir. 2005) ; Prevatte v. Merlak , 865 F.3d 894, 901 (7th Cir. 2017). Thus, we will address the question of waiver. See Moore v. Olson , 368 F.3d 757, 759 (7th Cir. 2004) ("Defects in subject-matter jurisdiction ... may not be waived or ...
  • Request a trial to view additional results
1 books & journal articles
  • Guantanamo and the conflict of laws: Rasul and beyond.
    • United States
    • University of Pennsylvania Law Review Vol. 153 No. 6, June 2005
    • June 1, 2005
    ...Burns v. Wilson, 346 U.S. 137 (1953) (same for prisoners in Guam). (36) 410 U.S. 484 (1973). (37) Id. at 500; see also Moore v. Olsen, 368 F.3d 757, 758 (7th Cir. 2004) ("[A]fter Braden v. 30th Judicial Circuit Court, which overruled Ahrens, the location of a collateral attack is best under......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT