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Jackson v. Parish

United States District Court, E.D. Michigan, Southern Division

August 14, 2019

DOUGLAS JACKSON, Petitioner,
v.
LES PARISH, Respondent.

          OPINIONANDORDERGRANTINGRESPONDENT'SMOTIONTO VACATE [#54] AND DENYINGPETITIONER'S MOTIONFOR SUMMARYJUDGMENT[#64]

          Hon. Gershwin A. Drain United States District Court Judge.

         Present before the Court is Respondent's Motion to Vacate this Court's Order Granting Petitioner's Emergency Motion to Stop Transfer During the Pendency of Habeas Proceedings. Dkt. No. 54. Petitioner has also filed a Motion for Summary Judgment. Dkt. No. 64. For the reasons set forth below, the Court will GRANT Respondent's Motion [#54] and DENY Petitioner's Motion [#64].

         A. The Court will Grant Respondent's Motion to Vacate [#54].

         On October 29, 2018, this Court, citing Federal Rule of Appellate Procedure 23(a), entered an Order prohibiting Respondent from transferring Petitioner to another correctional facility without express permission. Respondent has filed a Motion to Vacate that Order pursuant to Federal Rule of Civil Procedure 60(b), arguing Rule 23(a) is inapplicable to the instant proceedings. Respondent asserts that Rule 23(a) applies only to habeas cases pending on appeal, and not to cases pending before the district court.

         Federal Rule of Civil Procedure 60(b) provides that a motion for relief from judgment can be granted for any of the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or other misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b). After reviewing Respondent's Motion, the Court agrees that Rule 23(a) was not intended to prevent prison officials from transferring a petitioner to another correctional facility prior to an appeal of a district court's decision. In that respect, the Court erred, and Respondent is entitled to the relief requested.

         Federal Rule of Appellate Procedure 23(a) provides that “[p]ending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule.” Fed. R. App. P. 23(a). Rule 23(a) was “designed to prevent prison officials from impeding a prisoner's attempt to obtain habeas corpus relief by physically removing the prisoner from the territorial jurisdiction of the court in which a habeas petition is pending.” Thorton v. Butler, 2008 WL 5329958, at *1 (E.D. Cal. Dec. 19, 2008) (quoting Goodman v. Keohane, 663 F.2d 1044, 1047 (11th Cir. 1981)). However, Rule 23(a) “applies only when a habeas action is before the court of appeals on review of a district court's decision.” Fowler v. Miller-Stout, 2008 WL 60015, at *2 (W.D. Wash. Jan. 3, 2008) (quoting Mitchell v. McCaughtry, 291 F.2d 823, 835 (E.D. Wis. 2003)); see Modonas v. Bell, 2008 WL 2357671 (E.D. Mich. June 6, 2008) (“This Court initially notes that the Federal Rules of Appellate Procedure do not apply to actions in a district court. Petitioner would therefore be unable to invoke Rule 23(a) and (c) of the Federal Rules of Appellate Procedure to obtain release.”); Bridges v. Wolfenbarger, 2007 WL 325356, at *3 (E.D. Mich. Jan. 31, 2007) (Rule 23(a) “applies only when a habeas petition is before a court of appeals on review of a district court's decision and is therefore inapplicable to habeas petitions that are pending in a federal district court.”); Benedict v. United States Parole Comm'n, 569 F.Supp. 438, 448 n.19 (E.D. Mich. 1983) (Rule 23(a) “would not apply unless and until Petitioner files an appeal from judgment of this Court.”).

         As the above line of cases make clear, Rule 23(a) would not apply until this action was pending before the Sixth Circuit on appeal. Because the Court is unaware of any other authority which would prevent Respondent from transferring Petitioner to another prison facility within the ...


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