United States District Court, S.D. Ohio, Eastern Division
WILLIAM H. EVANS, JR., Petitioner,
U.S. MARSHALS SERVICE, Respondent.
L. GRAHAM Magistrate Judge
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE
and REPORT AND RECOMMENDATION Petitioner, a
state prisoner, seeks a writ of habeas corpus pursuant to 28
U.S.C. § 2241. The matter is before the Court for
consideration of the Petition (ECF No. 1), Respondent's
Return (ECF No. 10), Petitioner's Traverse (ECF No. 14),
Petitioner's Supplement to his Traverse (ECF No. 16), and
the exhibits filed by the parties. For the reasons that
follow, it is RECOMMENDED that the petition
for a writ of habeas corpus be DENIED and
this action be DISMISSED without prejudice.
before the court is Petitioner's Motion to Re-open This
Case. (ECF No. 46). That motion is DENIED in
light of this Order and Report and Recommendation.
Petitioner's fourth federal habeas action. Petitioner
previously filed two actions under § 2241, one in the
Eastern District of Virginia and one in the District of
Columbia, which were both transferred to this Court's
Western Division where they were dismissed for failure to
prosecute. See Evans v. United States Marshals
Service, No. 1:15-cv-677, S.D. Ohio; Evans v. United
States Marshals Service, No. 1:14-cv-00912, S.D. Ohio.
Petitioner also filed a third action under § 2241 in
this Court's Eastern Division on September 4, 2014.
Evans v. Warden, Ross Corr. Inst.,
2:14-cv-01451, S.D. Ohio. That action was dismissed because
Petitioner could not establish that he was “in custody,
” and thus, this Court lacked jurisdiction to entertain
his habeas claims. The Sixth Circuit Court of Appeals
affirmed that decision. Evans v. Warden, Ross Corr.
Inst., No. 15-3373, 2016 U.S. App. Lexis 23981, at *5
(6th Cir. May 3, 2016).
filed the instant action in the District of Columbia on
October 1, 2015, before it was transferred to this Court on
May 16, 2017. (ECF Nos. 1, 27.) Like its predecessors, the
current petition alleges that Petitioner was incarcerated at
Ross County Correctional Institute (“RCCI”). (ECF
No. 1, at PAGE ID #1.) Like the others, this petition alleges
that in January of 2014, while he was incarcerated at RCCI,
Petitioner discovered that a detainer lodged by Respondent
had been placed in his Ohio Department of Rehabilitation and
Correction (“ODRC”) inmate records on July 11,
2008. (ECF No. 1, at PAGE ID # 1.) In every case, Petitioner
alleges that the detainer is unauthorized and that it could
have an adverse impact on his future parole eligibility.
(See ECF No. 16, at PAGE ID # 84.) Petitioner asks
this Court to order that the detainer be removed from his
records or that he be promptly brought to trial on it. (ECF
No. 1, at PAGE ID # 3.)
asserts that on June 3, 2008, it filed a notice of
investigation with the Inmate Records Office at RCCI
indicating that Respondent was investigating whether
Petitioner posed a threat to anyone under Respondent's
protection. (ECF No. 10-2, at PAGE ID # 44.) Respondent
further asserts that the investigation notice is not a
detainer as the term is commonly understood because it is not
based on an arrest warrant or an indictment in another case,
nor does it request that Petitioner be detained until he can
be taken into custody by another agency. Id.
October 19, 2017, this Court transferred the instant action
to the Sixth Circuit so that Petitioner could seek
authorization to file a successive petition. (ECF No. 36.) On
March 21, 2018, the Sixth Circuit remanded this matter for
further proceedings, explaining that unlike a petitioner who
seeks relief under 28 U.S.C. § 2254, a petitioner who
seeks relief under § 2241 is not required to obtain
authorization for a successive petition. ECF No. 44, In
re William H. Evans, No. 17-4105, (6th Cir. March 20,
2018). The Sixth Circuit further explained that although
Petitioner argued on appeal that the investigation
notice/detainer has been withdrawn, “to the extent that
a detainer exists, Petitioner is not ‘in custody'
pursuant to it.” Id. (citing Evans,
2016 U.S. App. Lexis 23981, at *5).
April 13, 2018, Petitioner filed a Notice of Change of
Address, indicating that he had been transferred from RCCI to
a facility located in Mahoning, County, Ohio. (ECF No. 45.)
On April 23, 2018, Petitioner filed a Motion to Re-open This
Case in light of the Sixth Circuit's remand. (ECF No.
has been transferred to a facility in Mahoning County, Ohio,
which is located in the Northern District of Ohio. A court
only has jurisdiction over a habeas corpus petition, however,
if it has personal jurisdiction over the petitioner's
custodian. Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484, 494-95 (1973) (“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”); Jenkins v. United
States, 4 Fed.Appx. 241, 242 (6th Cir. 2001) (upholding
dismissal of a § 2241 petition because district court
did not have personal jurisdiction over the petitioner's
custodian.) This Court does not possess personal jurisdiction
over the facility in Mahoning County where Petitioner is
currently incarcerated. For that reason, the Undersigned
concludes that the Southern District of Ohio is no longer the
proper forum for this action.Nevertheless, the Undersigned
RECOMMENDS that this action be
DISMISSED without prejudice instead of
transferred to the Norther District pursuant to 28 U.S.C.
§ 1406(a) because Petitioner's habeas action fails
no matter where it is adjudicated.
federal habeas statute states that “the writ of habeas
corpus shall not extend to a prisoner unless . . . [h]e is
in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C §
2241(c)(3) (emphasis added). Accordingly, a district court
does not have jurisdiction to consider a case unless a
petitioner is “in custody” under the conviction
or sentence under attack at the time his petition is filed,
Maleng v. Cook, 490 U.S. 488, 490-91 (1989), or is
under a consecutive sentence imposed at the same time as the
conviction or sentence under attack, Garlotte v.
Fordice, 515 U.S. 39, 41 (1995). In addition, the
law-of-the- case doctrine provides that “‘a
decision made by a court at one stage of a case should be
given effect in successive steps of the same
litigation.'” Keith v. Bobby, 618 F.3d
594, 599 (6th Cir. 2010) (quoting United States v.
Todd, 920 F.2d 399, 403 (6th Cir. 1990). This doctrine
renders a determination by a court of appeals binding upon a
district court in subsequent stages of the same litigation,
and thus generally bars district courts from reconsidering
issues that courts of appeals have explicitly or impliedly
resolved. Id. (citing United States v.
Haynes, 468 F.3d 422, 426 (6th Cir. 2006)).
litigation, the Sixth Circuit has explicitly determined that
Petitioner is not “in custody” pursuant to the
investigation notice/detainer. (ECF No. 44, at PageID # 228.)
Under the law-of-the-case doctrine, this Court is, and a
transferee court would be, bound by that determination.
Because Petitioner cannot establish that he is in custody
pursuant to the investigation notice/detainer, this Court
does not have, and a transferee court would not have
jurisdiction over ...