REESE v. UNITED STATES BOARD OF PAROLE

PER CURIAM:

This matter involves the proper jurisdiction for a habeas corpus proceeding. We remand the case to the District Court with instructions to transfer same to the District of Arizona where the petitioner is incarcerated.

Raymond Reese was convicted in the United States District Court for the District of Utah in 1964 and sentenced to serve two 5-year consecutive terms. In September 1972 he was released on parole, pursuant to 18 U.S.C. § 4164 with 966 days remaining on his sentence. In April 1973, he was convicted of first degree burglary by an Arizona court and sentenced to a ten to twelve year term in the Arizona State Prison, which sentence he is now serving.

The United States Board of Parole promptly issued a parole violator warrant commitment for Reese, and forwarded it to the United States Marshal in Arizona. On May 4, 1973 the Marshal filed a detainer with the Arizona State Prison at Florence, Arizona, where Reese is serving his 10-12 year sentence. Cf. Combs v. Carroll, 446 F.2d 893 (5th Cir. 1971). On May 19, 1973 Reese inquired of the probation officer in Phoenix, Arizona, as to the date of his "revocation hearing" and was informed by the U.S. Board of Parole by letter of June 1, 1973 "that the Board plans to review the statutes of your outstanding warrant in April, 1974." Whether this contemplated a "revocation hearing" does not appear. Reese thereupon on June 20, 1973 filed a habeas corpus petition under 28 U.S.C. §§ 2241 and 2254 against the United States Board of Parole in the United States District Court for the District of Columbia. His petition alleged, without more, "that he is being denied his constitutional rights." His supporting memorandum, however, contended the Board intended to delay his revocation hearing until June 16, 1978, when he expected that his state sentence would, with good time, terminate. The District Court, without a hearing and without a formal opinion, dismissed the petition and denied petitioner's motion for leave to appeal without prepayment of costs as "frivolous and not taken in good faith."

We next denied petitioner's appeal for leave to proceed in forma pauperis in this court on the stated ground that the petition for writ of habeas corpus was "required to be brought in the District of petitioner's incarceration." Appellant then applied to the United States Supreme Court for a writ of certiorari. In response to this petition the Solicitor General filed a Memorandum stating, inter alia:

The decision of the court below, denying for lack of jurisdiction petitioner's motion to appeal in forma pauperis, is at odds with the recent decision of this Court in Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484, [ 93 S.Ct. 1123, 35 L.Ed.2d 443] which held that jurisdiction under 28 U.S.C. § 2241 lies with the district of confinement and the district where the custodian of the confinement is present.

Here, since the warrant-detainer was issued by the United States Board of Parole in Washington, D.C. and since, in the case of a detainer, the custodian is the party who issued the detainer, we believe that the court below was not without jurisdiction to consider petitioner's motion to appeal in forma pauperis.[1]

[1] Under the rule laid down in Young v. Director, U.S. Bureau of Prisons, [ 125 U.S.App.D.C. 105] 367 F.2d 331 (C.A. D.C.), it would, however, be appropriate for the court below to transfer the petition to the court for the district in which petitioner is incarcerated, since no compelling reason for considering the petition in the District of Columbia is evident. See 28 U.S.C. § 1391(e). Petitioner agrees that this would be appropriate. (Pet. 5).

We therefore respectfully submit that the petition for a writ of certiorari should be granted and the case remanded to the court of appeals.

The Supreme Court granted the petitioner's motion to proceed in forma pauperis and the petition for writ of certiorari. Then, acting on the petition and the Government's response thereto, it vacated the judgment of the Court of Appeals and remanded the cause to this court "for further consideration in light of the position presently asserted by the Government."

The position of the Government as asserted in its response, the material portion of which is quoted above, is that jurisdiction under 28 U.S.C. § 2241 lies within the district of confinement (Arizona) and the district where the custodian of the confinement is present. The United States courts in this circuit thus have jurisdiction to consider the merits of appellant's petition and, in an appropriate case, to order the transfer of the petition to the court for the district where the petitioner is incarcerated. Young v. Director, U.S. Bureau of Prisons, 125 U.S.App.D.C. 105, 367 F.2d 331 (1966). Since no compelling reason for considering the petition in the District of Columbia is evident, the judgment of the District Court is vacated and the cause is remanded to the United States District Court for the District of Columbia with instructions to transfer the petition to the United States District Court for the District of Arizona.

So ordered.