Knox v. Sharp

• Court: District Court, E.D. Oklahoma
• Decided: August 29, 2019
• Docket: 6:19-cv-00307
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA ANTONE LAMANDINGO KNOX, ) Petitioner, Vv. Case No. CIV-19-790-F TOMMY SHARP, Interim Warden, Respondent. REPORT AND RECOMMENDATION Antone Lamandingo Knox (Petitioner), a state prisoner in the custody of the Oklahoma Department of Corrections, seeks relief from this Court under 28 U.S.C. § 2241. See Doc. 1. United States District Judge Stephen P. Friot has referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 7. “A petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity and must be filed in the district where the prisoner is confined.” Haugh v. Booker, 210 F.3d 1147, 1149 (10th Cir. 2000) (citation omitted). Here, however, Petitioner is incarcerated at the Oklahoma State Penitentiary (OSP), McAlester, Pittsburg County, Oklahoma, see Doc. 1, at 1, a facility located within the territorial jurisdiction of the Eastern District of Oklahoma. See 28 U.S.C. §116(b). Consequently, this Court lacks jurisdiction over his petition.

Nonetheless, “[j]urisdictional defects that arise when a suit is filed in the

wrong federal district may be cured by transfer under the federal transfer statute, 28 U.S.C. § 1631, which requires a court to transfer such an action if the transfer is in the interest of justice.” Haugh, 210 F.3d at 1150 (citation and internal quotation marks omitted). It is within this court’s discretion to determine whether to transfer an action or instead to dismiss the action without prejudice. See Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir. 2006). Review of the instant petition reveals Petitioner is challenging as discriminatory the Respondent’s denial, on January 18, 2019 and August 12, 2019, of Petitioner's request to participate in an earned/achievement credits

program. See Docs. 1, 3. He alleges exhaustion or attempted exhaustion of administrative and state court remedies. See id. No issue—including a statute of limitations issue—mitigates against the transfer of this matter to the appropriate judicial district for disposition. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT For these reasons, the undersigned recommends that the interest of justice warrants the transfer of this matter, including Petitioner’s pending motion for leave to proceed in forma pauperis, see Doc. 2, to the United States District Court for the Eastern District of Oklahoma.

The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before September 19, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter. ENTERED this 29th day of August, 2019. _ Sina ZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE