The opinion of the court was delivered by: FRANCIS
UNITED STATES MAGISTRATE JUDGE
After being convicted in New Hampshire for conspiring to murder her husband, Pamela Smart was transferred to a New York State prison. Ms. Smart then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Southern District of New York, naming the Commissioner of the New York State Department of Correctional Services as respondent. The respondent now moves to dismiss the petition for improper venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure or, in the alternative, to transfer venue to the United States District Court for the District of New Hampshire under 28 U.S.C. § 1404(a). Ms. Smart argues that venue is proper and asks the Court to issue an order allowing her attorneys to conduct videotaped depositions in New Hampshire. For the reasons set forth below, the respondent's motion to transfer venue is granted.
Ms. Smart, the media director for a New Hampshire school district, was accused of inducing her teenage lover to kill her husband. Her trial received national media attention, including coverage by the three major television networks, and inspired a motion picture. Affirmation of Leslie Ben-Zvi, dated April 17, 1998 ("Ben-Zvi Aff.") PP 50, 54.
On March 22, 1991, a New Hampshire jury convicted her of being an accomplice to first-degree murder, conspiring to commit murder, and tampering with a witness. State v. Smart, 136 N.H. 639, 643-46, 622 A.2d 1197, 1200-02 (1993). The New Hampshire Supreme Court upheld the convictions. Id. at 669, 622 A.2d at 1216. Ms. Smart received a mandatory life sentence without possibility of parole. Ben-Zvi Aff. P 3. Because New Hampshire lacks adequate facilities to house a female inmate for a life term, Ms. Smart was transferred to the Bedford Hills Correctional Facility in New York State pursuant to an interstate agreement. Ben-Zvi Aff. PP 3, 9. She has been incarcerated in New York for approximately seven years. Ben-Zvi Aff. P 9.
On April 21, 1997, Ms. Smart filed an application for state habeas corpus relief in Rockingham County Superior Court in New Hampshire. Petition for Writ of Habeas Corpus ("State Pet."), attached to Memorandum of Law in Support of Petition for Writ of Habeas Corpus ("Pet. Mem."); Pet. P 11; Ben-Zvi Aff. P 5. First, Ms. Smart argued that Judge Douglas Gray, who presided over her trial, violated her Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution and her rights under Part 1, Article 15 of the New Hampshire Constitution by communicating with jurors three times when neither she nor her counsel was present. State Pet. P 3. Two of these communications consisted of in camera, on-the-record meetings between the judge and two different jurors with respect to possible juror misconduct. Smart v. Brodeur, 97-E-157 (Superior Ct., Rockingham County, June 13, 1997), attached as Exhibit P to Pet. Mem., at 2. In the third instance, the judge informed the jurors that they would be sequestered. Smart v. Brodeur, 97-E-157 at 2; Ben-Zvi Aff. P 4 n.1. Ms. Smart asserted that this threat of sequestration influenced some jurors to vote for conviction. Smart v. Brodeur, 97-E-157 at 2; Ben-Zvi Aff. P 4 n.1.
In addition, Ms. Smart asserted four other claims in her state habeas corpus petition. She alleged that Judge Gray violated her Fifth and Sixth Amendment rights by breaching his "affirmative duty to investigate co-defendants' intentional subversion of the truth finding process and contempt for the proceedings." State Pet. P 4. She further asserted that the prosecution failed to disclose exculpatory material as required by Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). State Pet. P 5. Ms. Smart also claimed that she was denied due process and a fair trial as a result of extensive pretrial publicity, the court's failure to postpone the trial and the court's refusal to change venue. State Pet. P 6. Finally, she contended that her mandatory life sentence without possibility of parole was cruel and unusual punishment under the Eighth Amendment to the United States Constitution and Part 1, Article 18 of the New Hampshire Constitution. State Pet. P 7.
An evidentiary hearing was held before Judge Gray, who refused Ms. Smart's request that he recuse himself. Ben-Zvi Aff. P 5; Respondent's Reply Memorandum in Further Support of Motion to Dismiss or, in the Alternative, Transfer ("Reply Mem.") P 10. Judge Gray denied the petition on June 13, 1997. Smart v. Brodeur, 97-E-157 at 5; Pet. P 11(4)-(6).
On December 8, 1997, Ms. Smart submitted this federal habeas corpus petition in the Southern District of New York, asserting the same five claims raised in her state habeas corpus petition. Pet. P 12. The respondent then filed the instant venue motion.
B. Interstate Corrections Compact
Ms. Smart was relocated to New York pursuant to the Interstate Corrections Compact (the "ICC"). The ICC establishes a framework for the reciprocal use of prison space by states to effect economies in capital expenditures and operational expenses. New York and New Hampshire have adopted the ICC. See N.H. Rev. Stat. Ann. § 622-B:2 (1997); N.Y. Correct. Law §§ 100-109 (1987). Pursuant to the ICC, these two states have executed a contract authorizing the incarceration of one state's prisoners in the other's prisons. Contract Between the State of New Hampshire and the State of New York for the Implementation of the Interstate Corrections Compact ("Contract"), attached as Exhibit B to Ben-Zvi Aff.
The Contract and the ICC establish the rights and duties of the states sending and receiving prisoners. The receiving state acts as the agent for the sending state. N.H. Rev. Stat. Ann. § 622-B:2 Art. IV(a); N.Y. Correct. Law § 104(a). Transferred prisoners are at all times subject to the jurisdiction of the sending state, which may retake its inmates on demand. N.H. Rev. Stat. Ann. § 622-B:2 Art. IV(c); N.Y. Correct. Law § 104(c); Contract P 25. Transferred prisoners must be given all legal rights they would have received if confined in the sending state. N.H. Rev. Stat. Ann. § 622-B:2 Art. IV (e); N.Y. Correct. Law § 104 (e). However, they are also subject to all laws and regulations applicable to persons convicted by the receiving state that are not inconsistent with their sentences. Contract P 17. In the event of a conflict of law, the sending state's law governs. Contract P 2. Any decision of the sending state on a matter over which it retains jurisdiction is final and not reviewable by the receiving state. N.H. Rev. Stat. Ann. § 622-B:2 Art. V(a); N.Y. Correct. Law § 105(a). Finally, the receiving state must provide regular reports so an inmate's status may be reviewed according to the sending state's laws. N.H. Rev. Stat. Ann. § 622-B:2 Art. IV(d); N.Y. Correct. Law § 104(d).
A. Motion to Transfer Venue
1. Change of Venue in Habeas Corpus Proceedings
In civil cases, venue may be changed pursuant to 28 U.S.C. § ...