Austin v. FCI Cumberland, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Chad Austin
v. 	Case No. 19-cv-291-PB
FCI Cumberland, Warden
REPORT AND RECOMMENDATION
Chad Austin, an inmate at the Cumberland Federal
Correctional Institution in Maryland, has filed a motion to
appoint counsel (Doc. No. 1), which the clerk’s office docketed
as a petition seeking relief under 28 U.S.C. § 2241. 	Austin has
also filed a motion entitled, “Motion to Set the Record
Straight” (Doc. No. 3), explaining that he intended, in this
action, to seek relief under 28 U.S.C. § 2255.
Because Austin has previously unsuccessfully litigated a
motion under 28 U.S.C. § 2255, this court would not have
jurisdiction to hear a second § 2255 motion, unless the First
Circuit granted Austin permission to file a second § 2255 motion
here, see generally 28 U.S.C. §§ 2244, 2255(h). 	The First
Circuit has not done so. 	This court is also not the appropriate
forum for Austin to litigate claims under 28 U.S.C. § 2241, as
this court does not have jurisdiction over Austin’s custodian.
A transfer of this matter to the First Circuit, pursuant to
28 U.S.C. § 1631, would allow that court to consider whether
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Austin may be granted leave to file a successive § 2255 motion
here. 	Such a transfer is consistent with the interests of
justice, as Austin avers he has new evidence that warrants
further consideration under § 2255. 	Accordingly, the magistrate
judge recommends that the district judge:
1. 	Deny the pending motions without prejudice (Doc.
Nos. 1, 3);
2. 	Recharacterize this case as a successive § 2255
motion; and
3. 	Transfer this matter to the First Circuit, to
allow that court to consider whether Austin may be granted
leave to file a second § 2255 motion in this court.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 3, 2019
cc: 	Chad Austin, pro se
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