United States District Court, E.D. Michigan, Southern Division
VACATE [#54] AND DENYINGPETITIONER'S MOTIONFOR
Gershwin A. Drain United States District Court Judge.
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].
The Court will Grant Respondent's Motion to Vacate
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.
Rule of Civil Procedure 60(b) provides that a motion for
relief from judgment can be granted for any of the following
(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;
(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.
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
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 ...