Bersch v. Warden - Dublin, CA

2002 DNH 162

• Court: District Court, D. New Hampshire
• Decided: September 5, 2002
• Docket: CV-02-389-M
• Status: Published

Opinion

Bersch v . Warden - Dublin, CA CV-02-389-M 09/05/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Shannon Bersch, Petitioner

v. Civil N o . 02-389-M Opinion N o . 2002 DNH 162 Michael L. Benov, Warden, FPC - Dublin, California, Respondent

O R D E R

Petitioner, a federal prisoner, previously filed an

application for post-conviction relief in this court (Civil N o .

02-150-M). By order dated April 3 0 , 2002, the court dismissed

the petition without prejudice for lack of jurisdiction, noting

that petitioner was either: (1) seeking to challenge a two point

upward adjustment applied during sentencing under the Guidelines

(for carrying a weapon during her offense of conviction); or (2)

seeking to challenge the Bureau of Prisons’ denial of early

release under 18 U.S.C. § 3621(e), based on that weapon-carrying

adjustment.1 A copy of that order is attached.

1 Section 3621(e) provides that if a prisoner convicted of a nonviolent offense successfully completes a residential substance abuse treatment program, the Bureau of Prisons may reduce his or her period of custody by not more than one year. In dismissing the petition, the court observed that if

petitioner was challenging the upward Guideline adjustment, then

relief was unavailable under 28 U.S.C. § 2255, because she did

not raise the issue on appeal and the one year limitations period

applicable to § 2255 petitions had already expired. I f , however,

petitioner was challenging the execution of her sentence (i.e.,

the Bureau of Prisons’ refusal to grant her request for early

release under 18 U.S.C. § 3621), then, the court observed, she

could proceed under 28 U.S.C. § 2241. However, in that case,

jurisdiction would properly lie where she is held in custody

(Northern District of California) or where her custodian is

present (Northern District of California, and, perhaps, the

District of Columbia as well). See, e.g., United States v .

Barrett, 178 F.3d 3 4 , 50 n.10 (1st Cir. 1999) (“We also note that

a § 2241 petition is properly brought in the district court with

jurisdiction over the prisoner’s custodian (unlike a § 2255

petition, which must be brought in the sentencing court).”)

It appeared certain that what petitioner was really claiming

was entitlement to early release under § 3621 – an entitlement

her custodian refused to afford her. Such a challenge to the

2 execution of her sentence is properly brought under § 2241 in the

district court having jurisdiction over petitioner’s custodian.

Because this court lacks jurisdiction over petitioner’s

custodian, it dismissed the earlier filed petition, without

prejudice, for want of jurisdiction.

Petitioner then filed an application for habeas relief under

28 U.S.C. § 2241 in the Northern District of California, plainly

challenging the execution of her sentence - that i s , the Bureau

of Prisons’ view that she is “ineligib[le] for [early release

under] 18 U.S.C. § 3621(e)(2)(B) based on weapon enhancement.”

Petition for Habeas Corpus at 4 . However, by order dated July

3 1 , 2002, the District Court for the Northern District of

California transferred that petition to this court, suggesting

that under 28 U.S.C. § 2241(d) (which is applicable only to

persons held in custody pursuant to a state conviction),

jurisdiction over her § 2241 petition was proper in either the

place of her custody, o r , “in the district of conviction,” i.e.,

the District of New Hampshire. Thus, it appears that the

transferring court may have mistakenly thought petitioner was

3 held in state custody. She is not; petitioner is held in custody

pursuant to a federal conviction.

Because petitioner’s current application for habeas corpus

relief is filed pursuant to 28 U.S.C. § 2241 (see Petition for

Habeas Corpus at 1 ) , and because she seeks to challenge the

execution of her sentence (rather than actual sentenced imposed),

jurisdiction over her petition lies in the Northern District of

California (and perhaps in the District of Columbia), but not in

the District of New Hampshire. The transfer to this court was

improvident as this court is without jurisdiction, and

jurisdiction cannot be conferred by the transfer order. See

generally, Hernandez v . Campbell, 204 F.3d 861, 864 (9th Cir.

2000); United States v . Giddings, 740 F.2d 770, 772 (9th Cir.

1984); United States v . Pararas-Carayannis, 238 F.3d 432, 2000 WL

1350583 (9th Cir. 2000) (table opinion); United States v .

DiRusso, 535 F.2d 673 (1st Cir. 1976); United States v . Barrett,

178 F.3d 34 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000);

United States v . Glantz, 884 F.2d 1483 (1st Cir. 1989).

4 Accordingly, this court has no alternative but to remand

this case to the Northern District of California, where

jurisdiction properly lies.

SO ORDERED.

Steven J. McAuliffe United States District Judge

September 5 , 2002

cc: Shannon Bersch, pro se