Dennis v. Christensen
| Andre' Maurice Dennis |
| D. Christensen |
| 9:2022cv00997 |
| September 22, 2022 |
| US District Court for the Northern District of New York |
| David N Hurd |
| Miroslav Lovric |
| Habeas Corpus (General) |
| 28 U.S.C. ยง 2241 Petition for Writ of Habeas Corpus (federa |
| None |
Docket Report
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Filing 11
DECISION AND ORDER: ORDERED that the Clerk serve copies of this Decision and Order and the petition upon the United States Attorney for the Northern District of New York in accordance with the Local Rules. ORDERED that the respondent shall file and serve an answer to the petition, and provide the Court with the relevant records, within sixty (60) days of the date of this Decision and Order. ORDERED that petitioner may, but is not required to, file a reply within thirty (30) daysof the filing date of respondent's answer. ORDERED, that petitioner's request for appointment of counsel, Dkt. No. #4 , is DENIED WITHOUT PREJUDICE. Signed by Magistrate Judge Miroslav Lovric on September 27, 2022. [response due by D. Christensen served on 9/27/2022, answer due 11/28/2022] {served as directed}(nas)
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| Filing 10 Case transferred in from District of Connecticut; Case Number 3:22-cv-00978. electronically transferred when case opened |
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Filing 9
ORDER. Petitioner, presently an inmate at Ray Brook Correctional facility located in Ray Brook, New York, files the instant petition challenging the BOP's failure to credit him with time served for a prior sentence in Connecticut state jail, as well as failure to apply his First Step Act credits to reduce his sentence. For the reasons outlined below, this Court is not the proper venue for this action and will thus transfer it to the Northern District of New York. Pursuant to 28 U.S.C. 1406(a), "[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." The decision of whether to dismiss or transfer a case "lies within the sound discretion of the district court." Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993). Importantly, the U.S. Supreme Court "has made clear that '[w]henever a [28 U.S.C.] 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement,'" under what is known as the immediate custodian rule. Skaftouros v. United States, 667 F.3d 144, 146 n.1 (2d Cir. 2011) (alterations in original) (quoting Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004)). The question of the proper location for a habeas petition under the immediate custodian rule is "best understood as a question of personal jurisdiction or venue," as opposed to a limitation on the subject matter jurisdiction of a court. Padilla, 542 U.S. at 451 (Kennedy, J., concurring); see Cruz v. Decker, No. 18-CV-9948-GBD-OTW, 2019 WL 4038555, at *2 (S.D.N.Y. Aug. 27, 2019), aff'd, No. 18-CIV-9948-GBD-OTW, 2019 WL 6318627 (S.D.N.Y. Nov. 26, 2019) (collecting cases and noting that "[c]ourts have found that Padilla's 'immediate custodian rule is a venue rule'"). Where a 2241 petitioner has filed his habeas petition in the incorrect district, the Court is empowered to grant a transfer sua sponte to the correct district. Norwood v. Williams, No. 3:17-CV-1636-MPS, 2018 WL 340022, at *2 (D. Conn. Jan. 9, 2018).Here, although Petitioner's criminal case occurred in the District of Connecticut, he presently is incarcerated in the Northern District of New York. Thus, the District of Connecticut is not the proper venue for his petition. The Court finds that it would be in the interest of justice to transfer, rather than dismiss, the petition. The petition raises potentially meritorious claims, especially those asserting that the BOP has failed to calculate and apply the credits due him under the First Step Act. See Dyer v. Fulgam, No. 1:21-CV-299-CLC-CHS, 2022 WL 1598249, at *3 (E.D. Tenn. May 20, 2022) (granting habeas petition based on failure to calculate good time credits earned under the First Step Act); Stewart v. Snider, No. 1:22-CV-00294-MHH-JHE, 2022 WL 2032305, at *8 (N.D. Ala. May 10, 2022), report and recommendation adopted, No. 1:22-CV-294-MHH-JHE, 2022 WL 2019965 (N.D. Ala. June 6, 2022) (same). The Court sees no reason to dismiss the action and require Petitioner to refile when the action could simply be transferred and continue apace. Accordingly, the Clerk of Court is directed to transfer this action to the Northern District of New York. Signed by Judge Sarala V. Nagala on 9/6/22.(Marks, Joshua) [Transferred from Connecticut on 9/22/2022.]
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| Filing fee received from Andre Dennis: $5.00, receipt number BPT13175. (Fanelle, N.) [Transferred from Connecticut on 9/22/2022.] |
| Filing 8 Memorandum in Support of 28 USC 2241 2241 PETITION, filed by Andre' Maurice Dennis. (Attachments: #1 Envelope)(Mendez, D) [Transferred from Connecticut on 9/22/2022.] |
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Filing 7
ORDER denying Motion to Proceed In Forma Pauperis. ECF No. #2 . In this habeas action filed on August 2, 2022, Petitioner seeks leave to proceed without paying the filing fee under 28 U.S.C. 1915. ECF No. #2 . In ruling on such a motion, the Court considers whether information provided by Petitioner demonstrates that the burden of paying the fees for filing and service would hamper his ability to obtain the necessities of life or force him to abandon a potentially meritorious claim. Adkins v. E.I. Dupont de Nemours & Co., 335 U.S. 331, 339-40 (1948). Petitioner's inmate account statement shows that as of July 18, 2022 he had $1,400.10, and that he has a six month average balance of $551.41. See ECF No. #3 . Further, Petitioner indicates that no one is dependent upon him for support, and that he is not responsible for room and board. ECF No. #2 . As Petitioner has failed to demonstrate that he would have to forego life's necessities if he paid the $5.00 filing fee, the Court DENIES his motion to proceed in forma pauperis. ECF No. 2. All further proceedings in the matter shall be held in abeyance for 21 days pending Petitioner's delivery of the filing fee in the amount of $5.00 (money order or bank check made payable to the Clerk of Court) to the Clerk's Office, 915 Lafayette Boulevard, Bridgeport, CT 06604. Failure to tender the filing fee within 21 days of the date of this order will result in the dismissal of this action.Signed by Judge Sarala V. Nagala on 8/4/22. (Marks, Joshua) [Transferred from Connecticut on 9/22/2022.]
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Filing 6
ELECTRONIC FILING ORDER FOR COUNSEL - PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Sarala V. Nagala on 8/2/2022. (Mendez, D) [Transferred from Connecticut on 9/22/2022.]
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Filing 5
STANDING PROTECTIVE ORDER. Signed by Judge Sarala V. Nagala on 8/2/2022. (Mendez, D) [Transferred from Connecticut on 9/22/2022.]
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| Filing 4 Appointment of Counsel, by Andre' Maurice Dennis. (Mendez, D) [Transferred from Connecticut on 9/22/2022.] |
| Filing 3 Prisoner Trust Fund Account Statement, by Andre' Maurice Dennis. (Mendez, D) [Transferred from Connecticut on 9/22/2022.] |
| Filing 2 MOTION for Leave to Proceed in forma pauperis, by Andre' Maurice Dennis. (Mendez, D) [Transferred from Connecticut on 9/22/2022.] Modified on 9/22/2022 (nas, ). |
| Filing 1 PETITION for Writ of Habeas Corpus, filed by Andre' Maurice Dennis. (Attachments: #1 Envelope, #2 Attachment) (Mendez, D) [Transferred from Connecticut on 9/22/2022.] |
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| Petitioner: Andre' Maurice Dennis | |
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| Respondent: D. Christensen | |
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