Foistner v. FMC Devens, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Joseph A. Foistner
v. Civil No. 24-cv-003-SE-AJ
FMC Devens Warden
REPORT AND RECOMMENDATION
Joseph A. Foistner, a federal prisoner at FMC Devens, has
filed a petition (Doc. No. 1), seeking relief under 28 U.S.C.
§ 2241. The matter is here for preliminary review to determine
whether Mr. Foistner has asserted facially valid claims, within
this court’s jurisdiction. See 28 U.S.C. § 2243; Rule 4 of the
Rules Governing Section 2254 Cases (“§ 2254 Rules”); § 2254 Rule
1(b) (authorizing court to apply § 2254 Rules to petitions filed
under § 2241); LR 4.3(d)(4).
Standard
Pursuant to § 2254 Rule 4, a judge is required to examine a
petition for habeas relief and, if “it plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss
the petition.” Id. “Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient
on its face.” McFarland v. Scott, 512 U.S. 849, 856 (1994).
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The court construes this petitioner’s pleadings liberally,
considering his pro se status. See Dutil v. Murphy, 550 F.3d
154, 158 (1st Cir. 2008).
Background
Mr. Foistner placed this pro se § 2241 petition in the
prison mail system in late December 2023, while he was
imprisoned at FMC Devens. Mr. Foistner is serving the sentence
imposed upon him in United States v. Foistner, No. 18-cr-098-SE-
1 (D.N.H.).
On December 20, 2023, the court in Mr. Foistner’s criminal
case granted his prior counsel’s motion to withdraw, and then
further directed that new counsel, appointed to represent Mr.
Foistner in that matter, file either a motion for compassionate
release or a status report in that case on or before March 19,
2024. See id., Dec. 20, 2023 Order (ECF No. 233). That
deadline has not yet expired, and no filing in compliance with
that Order has yet been docketed in that case.
Discussion
To the extent petitioners seek relief under § 2241, they
must file their claims in the judicial district with jurisdiction
over their custodian. See 28 U.S.C. § 2241; see also Rumsfeld v.
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Padilla, 542 U.S. 426, 443 (2004). This court does not have
territorial jurisdiction over Mr. Foistner’s current custodian,
the FMC Devens Warden.
When a civil action is filed in a court that lacks
jurisdiction, the court must transfer the action to the judicial
district that would have had jurisdiction over the matter at the
time the case was filed, unless a transfer is not in the interest
of justice. See 28 U.S.C. § 1631. A transfer to the proper
judicial district is presumptively preferable, but the
presumption may be overcome if the administration of justice is
better served by dismissal. See Britell v. United States, 318
F.3d 70, 73 (1st Cir. 2003).
The court with jurisdiction over Mr. Foistner’s petition is
the District of Massachusetts, where FMC Devens is located.
Nothing in the record here suggests that a transfer to that
district is not in the interest of justice. Accordingly, the
district judge should order the transfer of this case to the
District of Massachusetts, to cure the want of jurisdiction.
Conclusion
For the foregoing reasons, this court lacks jurisdiction
over Mr. Foistner’s § 2241 petition, and the district judge
should direct the Clerk of Court to effect the prompt transfer
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of Mr. Foistner’s § 2241 petition to the District of
Massachusetts. Any objections to this Report and Recommendation
must be filed within fourteen days of receipt of this notice.
The objection period may be extended upon motion. Failure to
file any objection 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). Only those issues
raised in the written objections “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
January 5, 2024
cc: Joseph A. Foistner, pro se
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