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United States District Court, S.D. New York

August 5, 2004.

EARLINE ROBINSON, pro se, Petitioner,
C. DAVIS ATKINSON, parole agent Respondent.

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge



  Pro se petitioner Earline Robinson ("Robinson") seeks a writ of habeas corpus under 28 U.S.C. § 2241, challenging the revocation of his parole by Pennsylvania officials. In 1985, Robinson was convicted of burglary in Pennsylvania for which he served nine years in prison. Robinson was subsequently paroled and allowed to reside in New York pursuant to an interstate agreement. In 1999, before the expiration date of his parole, Robinson was arrested in New York for fraudulent accosting. Robinson, however, was not convicted of or sentenced for this crime until some time after his parole had allegedly expired. In 2002, Robinson served a 30-day prison term for the New York charge, and upon his release, Pennsylvania officials immediately re-incarcerated him, claiming that the New York crime constituted a violation of his parole. After serving nine months in Pennsylvania for the alleged parole violation, Robinson was again paroled and allowed to serve the remainder of his parole in New York, where he currently resides. Robinson challenges his parole status, asserting that he was no longer on parole when he was convicted of a crime in New York, and, thus, that this crime cannot serve as the basis for Pennsylvania's decision to "retake" him. (Petition for Writ of Habeas Corpus ("Petition") filed July 14, 2003 (Dkt. 1) ¶ 5.) Robinson has also moved for appointment of counsel. (Application for Appointment of Counsel ("Application for Counsel") filed Sept, 22, 2003 (Dkt. 5).)

  Respondent argues that the Petition should be construed as an application under 28 U.S.C. § 2254, even though Robinson designated it as an application under 28 U.S.C. § 2241. (See Memorandum of Law in Support of Motion to Transfer Venue ("Resp. Mem.") filed Nov. 26, 2003 (Dkt. 7) at 1-2.) Respondent further moves to transfer venue to the Middle District of Pennsylvania. (Id. at 5-7.) Respondent has not opposed Robinson's application for appointment of counsel.

  For the reasons set forth below, I respectfully recommend that the Petition be construed as if brought under Section 2254 and that Respondent's motion to transfer venue to the United States District Court for the Middle District of Pennsylvania be granted. I further recommend that the application for appointment of counsel be denied at this time, with leave to re-apply for such relief in the Middle District of Pennsylvania.


  On March 14, 1985, Robinson was arrested in Pennsylvania, charged with burglary, and subsequently sentenced by a Pennsylvania court to four-and-a-half to ten years in prison. (Petition ¶ 4(a).) On or about April 7, 1994, Robinson was released on parole. (Id.) Robinson alleges that he had a maximum release date from parole of October 2, 1999. (Id.) Approximately one year after being paroled, Robinson was permitted to reside in New York, pursuant to an interstate compact, under the supervision of New York parole authorities. (Id. ¶ 4(b).) Ms. S. Penister ("Penister") was assigned as Robinson's parole officer in New York. (Id.) On August 30, 1999, while still on parole in New York, Robinson was arrested for fraudulent accosting, a misdemeanor in New York. (Id. ¶ 4(c); Resp. Mem. at 3.) Robinson reported the arrest to Penister, who, in turn, reported it to the Pennsylvania Board of Probation and Parole ("Pennsylvania Board"). (Id.)

  Robinson alleges that he then continued to report to Penister in compliance with the terms of his parole, that his status as a parolee ended on October 2, 1999, as scheduled, and that he signed release papers to that effect. (Id. ¶ 4(d); Petitioner's Opposition to Venue Transfer ("Pet. Opp.") filed Dec. 12, 2003 (Dkt. 14) at 1, 4.)

  On August 21, 2000, Robinson pleaded guilty to the fraudulent accosting charge in Nassau County and, in March 2002, he finally began serving the imposed sentence of 30 days imprisonment. (Petition ¶ 4(e).) That 30-day term was set to expire on April 15, 2002, but, rather than being released on this date, Robinson was detained pursuant to a Pennsylvania order and was thereafter transferred to Pennsylvania, where his parole was revoked and he was re-incarcerated for his alleged parole violation (i.e., the New York conviction). (Id. ¶¶ 4(e)(f).) Robinson was re-incarcerated in Pennsylvania for nine months and then placed back on parole. (Id. ¶ 4(f).) In May or June of 2003,*fn1 Robinson was again allowed to reside and serve the remainder of his parole in New York (id.), where he is apparently being supervised by C. Davis Atkinson, the parole officer named in the Petition.

  On July 14, 2003, Robinson filed his Petition for a writ of habeas corpus, purportedly pursuant to 28 U.S.C. § 2241, challenging the validity of the Pennsylvania Board's decision to revoke his parole and re-incarcerate him. (Id. ¶¶ 5, 6.)



  Respondent argues that, although Robinson has invoked 28 U.S.C. § 2241, his Petition should have been brought under 28 U.S.C. § 2254 because it involves a challenge to the validity of the revocation of parole pursuant to a state court conviction. (Resp. Mem. at 2.)

  Section 2254 governs petitions filed on behalf of any person "in custody pursuant to the judgment of a State court," "on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States." 28 U.S.C. § 2254(a). By its terms, section 2254 "is not limited to challenges to an underlying conviction or sentence but can be used by any state prisoner who is in custody pursuant to a state court judgment and who challenges that custody on constitutional grounds." See Rossney v. Travis, No. 00 Civ. 4562 (JGK), 2003 WL 135692, at *3 (S.D.N.Y. Jan. 17, 2003). On the other hand, although Section 2241 may also be invoked by prisoners "in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2241(c)(3), that section has been used to challenge the execution of a federal sentence, when the underlying conviction is not at issue. Rossney, 2003 WL 135692, at * 4 (citing Carmona V. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001); Chambers v. United States, 106 F.3d 472, 474-75 (2d Cir. 1997)); see also James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (Section 2241 applies to federal prisoners challenging the execution of a sentence).

  In his Petition, Robinson contests an aspect of the execution of his continuing custody pursuant to a state court conviction. Such a challenge should be brought under Section 2254, rather than Section 2241. James, 308 F.3d at 167; see Cook v. New York State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003) (challenge to revocation of parole by a state prisoner properly brought under Section 2554). "[I]f an application that should be brought under 28 U.S.C. § 2254 is mislabeled as a petition under section 2241, the district court must treat it as a section 2254 application instead." Cook, 321 F.3d at 277 (citing James, 308 F.3d at 166).

  I therefore recommend that the Court deem this Petition to be an application under Section 2254.


  In civil cases, a change of venue may be granted pursuant to 28 U.S.C. § 1404(a), which provides: "For the convenience of the 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." Habeas corpus cases are civil in nature, and are thus encompassed by this provision. See Smart v. Goord, 21 F. Supp.2d 309, 313 (S.D.N.Y. 1998) (citing U.S. ex rel. Meadows v. State of New York, 426 F.2d 1176, 1183 n. 9 (2d Cir. 1970)). Thus the respondent's motion to transfer venue may only be granted if this action "might have been brought" in Pennsylvania.

  A. Jurisdiction

  Federal district courts may grant petitions for writs of habeas corpus "within their respective jurisdictions." 28 U.S.C. § 2241(a). The Supreme Court has interpreted this phrase to require "nothing more than that the court issuing the writ have jurisdiction over the custodian" of the petitioner. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973) ("The writ . . . does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody."). Thus, a court's jurisdiction to consider a habeas petition may be predicated on the location of the petitioner's custodian, not only on the location of the petitioner himself. Id. at 495. Indeed, "it is now clear that a habeas corpus petition may be brought in any court with jurisdiction over the prisoner or [his] custodian." Smart, 21 F. Supp.2d at 314 (citing Fest v. Bartee, 804 F.2d 559, 560 (9th Cir. 1986)).

  In this case, Robinson, who was on parole from a Pennsylvania conviction, was permitted to live in New York pursuant to the Interstate Compact Concerning Parole ("ICCP").*fn2 (Resp. Mem. at 3.) While in New York, Robinson committed a crime, which the Pennsylvania Board deemed a parole violation, and so, after serving time for the underlying crime in New York, Robinson was subsequently re-incarcerated in Pennsylvania for the parole violation. (Petition ¶ 4(e).) Robinson was released from prison in Pennsylvania in 2003, and is currently living in New York again, pursuant to the ICCP. (See id. ¶ 4(f).) Robinson challenges the revocation of parole by contending that he was convicted of the New York crime after he had been released from parole, and that he therefore did not violate his parole. (Id. ¶ 5(ii).) The question here is whether Pennsylvania may be considered Robinson's "custodian" for habeas corpus purposes, even though Robinson is currently on parole and residing in New York.

  In the context of interstate transfers, the sending state remains the custodian of the petitioner, while the receiving state merely acts as an agent for the sending state. See, e.g., Smart, 21 F. Supp.2d at 314 (holding that New Hampshire was the true custodian of a New Hampshire convict serving her sentence in a New York facility pursuant to the Interstate Corrections Compact); Barnes v. Florida Parole Comm'n, No. 3:04 Civ. 775 (RSU), 2004 WL 1553610, at *3 (D. Conn. July 9, 2004) (petitioner's challenge to an action by the Florida Parole Commission would properly be brought in a Florida district court, even though petitioner was confined in Connecticut pursuant to the Interstate Corrections Compact); see also Fest, 804 F.2d at 560 (petitioner convicted in Nebraska but incarcerated in Nevada pursuant to the Interstate Corrections Compact was in Nebraska's custody for purposes of challenge to Nebraska conviction). Indeed, New York's authority is contingent on that of Pennsylvania, which may retake Robinson at anytime. See N.Y. Exec. Law § 259-m; 61 Penn. Stat. § 321, see e.g., Smart, 21 F. Supp.2d at 314.*fn3 Therefore, jurisdiction would be proper in the Middle District of Pennsylvania, and it follows that the appropriate Pennsylvania official may be substituted as the respondent in this Petition. See Smart, 21 F. Supp.2d at 314.

  B. Venue

  Although this Court and the District Court for the Middle District of Pennsylvania have concurrent jurisdiction over Robinson's Petition, see id., there still remains the question of which venue is more appropriate. The factors that a court considers in determining whether or not to transfer a case to another district include: (1) the locus of operative facts; (2) the location of relevant documents and ease of access to proof; (3) the forum court's familiarity with the governing law; (4) whether a change will result in more efficiency and justice; (5) the convenience of the witnesses and parties; (6) the availability of process to compel witness testimony; (7) the petitioner's choice of forum; and (8) the relative means of the parties. See, e.g., Smart, 21 F. Supp.2d at 315; Balboa v. Sizer, 899 F. Supp. 186, 187 (S.D.N.Y. 1995) (citations omitted); see also Braden, 410 U.S. at 493-94. Generally, motions to transfer venue lie within the "discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis." Balboa, 899 F. Supp. at 187 (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)).

  Although not all of the relevant factors would support a change of venue here, on balance the factors weigh in favor of a transfer to the Middle District of Pennsylvania. Most significantly, Robinson contends that he is challenging the validity of the Pennsylvania Board's decision to revoke his parole. (See Pet. Opp. at 2-3.) Specifically, Robinson asserts that it was improper for Pennsylvania authorities to place "a detainee hold on [him after he had served his sentence in New York] . . . until officials from Pennsylvania arrived to take [him] back to Pennsylvania." (Petition at ¶ 4(e).) Given that the focus of this case must therefore be a determination that was presumably made in Pennsylvania under Pennsylvania law, it is plain that both the relevant facts and legal claims of Robinson's Petition are more closely tied to Pennsylvania than to New York. See Diallo v. Holmes, 288 F. Supp.2d 442, 445 (S.D.N.Y. 2003) (where petitioner challenged an action denying his request to be released on bond, venue was proper in the district in which that decision was made); Brooks v. Strack, No. 98 Civ. 6528 (JG), 1999 WL 672949, at *4 (E.D.N.Y. Aug. 25, 1999) (where habeas petition challenged parole hearing procedures, venue was proper where parole hearing took place and where the parole decision was made); see Barnes, 2004 WL 1553610, at *3-4 (where petitioner challenged a parole decision made by the Florida Parole Commission, venue was proper in Florida); cf. ex rel Meadows, 426 F.2d at 1183 (the court best situated to decide whether a parole detainer should be withdrawn as against the petitioner would be in the state which lodged that detainer against him rather than the state where he was actually located). Because the challenged decision was made by the Pennsylvania authorities, Robinson's argument that the most relevant documents and witnesses are in New York (see Pet. Opp. at 1-2) is not persuasive. While one document identified by Robinson (the parole "release" he claims to have signed) and one potential witness (his New York parole officer, Penister) are likely in New York, the documentation of the Pennsylvania Board's decision to revoke Robinson's parole, as well as any Board members who participated in that decision, will likely be found in Pennsylvania. Indeed, the only factors that truly weigh against transfer are that Robinson, who currently resides in New York, chose this forum, and that he may lack substantial means. These concerns, however, are not sufficient to tip the balance in favor of a jurisdiction with far less familiarity with the relevant facts and law, and with less access to the key documents and witnesses. See Smart, 21 F. Supp.2d at 315 ("[W]here the operative events occurred elsewhere, the plaintiff's choice of forum is given less weight.") (citations omitted); see also Diallo, 288 F. Supp.2d at 445-46 (the financial ability of the parties is but one of several factors to be considered) (citing Kalko v. Holiday Inns, Inc., 672 F. Supp. 713, 716 (S.D.N.Y. 1987)).

  Taking the relevant considerations into account as a whole, I recommend that Respondent's motion to transfer venue be granted. See Smart, 21 F. Supp.2d at 315-18 (granting motion to transfer venue where the locus of operative facts, convenience of witnesses, and familiarity with the governing law pointed towards moving venue).


  Finally, given my recommendation that Respondent's motion to transfer venue be granted, I also recommend that Robinson's application for counsel be denied at this time. It may be that, given the potential complexity of issues raised by the Petition, including threshold procedural issues that may become relevant under 28 U.S.C. § 2254,*fn4 both Robinson and the Court would benefit from the appointment of counsel. If the case is transferred, however, that determination can be properly made by the Court that would then rule on the Petition, and I therefore recommend that Robinson's application for counsel be denied, with leave to reapply for appointment of counsel after transfer of the case.


  For all of the foregoing reasons, I respectfully recommend that the Petition be deemed to have been brought under 28 U.S.C. § 2254, and that Respondent's motion to transfer venue to the United States District Court for the Middle District of Pennsylvania be granted. Upon such a transfer, the Petition should be amended to name the proper Pennsylvania authority as respondent, in lieu of the currently named respondent, Atkinson. I further recommend that Robinson's application for counsel be denied without prejudice.

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Deborah A. Batts, United States Courthouse, 500 Pearl Street, Room 2510, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Batts. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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