United States v. Poole

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 07-4220
JASON CONRAD POOLE,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(8:96-cr-00238-AW)

Argued: March 21, 2008

Decided: June 20, 2008

Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge
Duncan wrote the opinion, in which Judge Motz and Judge Traxler
joined.

COUNSEL

ARGUED: Michele Walls Sartori, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellant. Robert
Whelen Biddle, NATHANS & BIDDLE, L.L.P., Baltimore, Mary-
land, for Appellee. ON BRIEF: Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland; Barbara S. Skalla, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appel-
lant.
2 UNITED STATES v. POOLE
OPINION

DUNCAN, Circuit Judge:

This appeal presents the issue of whether a temporary custody
arrangement can form the basis of a district court’s jurisdiction over
a habeas petition filed under 28 U.S.C. § 2241(c)(3). For the reasons
that follow, we conclude that it does not, and that the measures taken
by the district court to secure jurisdiction here were improper. We
therefore reverse and remand with instructions to reinstate the original
sentence.

A brief overview of this procedurally convoluted case is warranted.
After a jury trial, Jason Conrad Poole ("Poole") was found guilty in
the United States District Court for the District of Maryland
("Maryland federal district court") of possession with intent to distrib-
ute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Designated a
career offender under the United States Sentencing Guidelines
("Guidelines"), U.S.S.G. § 4B1.1 (1995), Poole was sentenced to 262
months’ imprisonment and sent to federal prison in Cumberland, Ken-
tucky to serve out his sentence.

Unable to obtain relief after a direct appeal, three habeas corpus
petitions (two under 28 U.S.C. § 2255 and one under 28 U.S.C.
§ 2241), and a number of pro se motions seeking collateral review of
his sentence, Poole retained counsel. His counsel secured Poole’s
appearance before the original federal sentencing judge to testify
regarding an outstanding post-conviction motion. Once there, how-
ever, Poole abandoned that motion and instead asked to remain in
Maryland long enough to file another habeas corpus petition under
§ 2241(c)(3). In contrast to a § 2255 habeas petition, which is filed
with the original sentencing court, a § 2241 habeas petition can only
be filed in the district in which a prisoner is confined. The district
court acquiesced in Poole’s proposal, keeping him in Maryland for
several months and short-circuiting Poole’s return to his Kentucky
cell, in an express attempt to create the requisite confinement for pur-
poses of obtaining jurisdiction over the forthcoming request. Poole
eventually filed the § 2241(c)(3) petition, seeking reduction in his
sentence on the ground that the career-offender enhancement was
improperly applied to him because a state court judgment had
 UNITED STATES v. POOLE 3
amended one of his prior convictions. The district court granted the
petition and resentenced Poole to 135 months’ imprisonment. Having
already served the majority of that sentence, Poole was released over
the government’s objections.

The government now appeals, arguing, inter alia, that the district
court did not have jurisdiction to consider Poole’s § 2241(c)(3)
motion because Poole was not "in custody" in Maryland. We agree.

I.

A.

We begin with a detailed explication of the complicated factual and
procedural history underlying this appeal. Poole was convicted on
February 6, 1997 in the Maryland federal district court of possession
with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1). He faced designation as a career offender based on two
prior convictions in Maryland state court: a 1989 robbery conviction
and a 1991 possession-with-intent-to-distribute-cocaine conviction.1
Such an enhancement would increase his Guidelines sentencing
range, from a range of 151 months to 188 months, to a range of 360
months to life imprisonment.2

Prior to sentencing, in an effort to avoid the career-offender
enhancement, Poole sought modification of the 1991 conviction by
filing a motion in the Circuit Court for Prince George’s County,
1
A defendant with "at least two prior felony convictions of either a
crime of violence or a controlled substance offense" is considered a
career offender when he commits a third such offense. U.S.S.G. § 4B1.1
(1995). Because Poole’s robbery conviction constituted a "crime of vio-
lence" and his possession-with-intent-to-distribute conviction constituted
a "controlled substance offense," the Guidelines called for him to be sen-
tenced as a career offender.
2
Before application of the career-offender enhancement, Poole’s fed-
eral possession conviction yielded an offense level of 32 coupled with a
criminal history category of III. The career-offender enhancement ele-
vated his offense level to 37 and his criminal history category to VI. See
U.S.S.G. § 4B1.1(A) (1995).
4 UNITED STATES v. POOLE
Maryland ("Maryland state court"). In the motion, Poole requested a
hearing to reduce the 1991 felony possession-with-intent-to-distribute
conviction to a misdemeanor conviction for simple possession,
explaining that he "was never advised at the time of his entry of his
plea [to the 1991 drug crime] that its effect might be to characterize
him as a career offender for Federal sentencing guidelines purposes
and expose him to such an extreme penalty for a case involving a
small amount of drugs." J.A. 21. Poole attached to the request a pro-
posed order granting both the motion for a hearing and the underlying
relief sought—that "the Court’s judgment of conviction entered on
November 1, 1991, being and is hereby revised such that the convic-
tion for possession with intent to distribute cocaine is stricken in favor
of a judgment of conviction for possession of cocaine." J.A. 23.

On April 21, 1997, Prince George’s County Judge Darlene Perry
signed and dated the proposed order granting the hearing and the
underlying sentence modification (the "April 21 order").3 On the same
day that the order was filed, however, the underlying matter was also
set for a future hearing before Judge Perry. The hearing was held on
June 6, 1997, after which Judge Perry entered an order denying
Poole’s substantive motion and leaving his felony drug conviction
intact (the "June 6 order"), in direct contradiction to her April 21
order. Judge Perry made no reference to the April 21 order nor to her
ostensible modification of the sentence.

Poole returned to federal court shortly thereafter for a sentencing
hearing regarding his 1997 federal drug conviction. Judge Perry’s
April 21 order was never mentioned during this hearing, and Poole
did not otherwise challenge the application of the career-offender
enhancement. Indeed, the presentence report ("PSR") calculated
Poole’s Guidelines range assuming the applicability of the career-
offender enhancement, recommending a sentence of 360 months to
life imprisonment. The district court departed downwards, finding
that the Guidelines overstated Poole’s criminal history, and sentenced
him to 262 months’ imprisonment. Poole was sent, at his request, to
the federal prison in Cumberland, Kentucky to serve out his sentence.
3
As described below, Poole did not become aware until 2002 that this
order was signed, granting him the relief he sought.
 UNITED STATES v. POOLE 5
B.

In the years that followed, Poole pursued a number of unsuccessful
appeals and collateral attacks to his conviction and sentence, includ-
ing a failed direct appeal and a failed § 2255 petition arguing ineffec-
tive assistance of counsel.

Having exhausted the usual avenues for federal relief, Poole filed
a pro se motion in 2002 with the Maryland state court seeking recon-
sideration of Judge Perry’s June 6, 1997 order denying him a modifi-
cation of his sentence for the 1991 drug crime. A law clerk from the
Maryland state court responded to Poole, informing him of Judge
Perry’s April 21 order that appeared to have reclassified his 1991
drug conviction from a felony to a misdemeanor. Poole’s subsequent
efforts to leverage the April 21 order to reduce his federal sentence
form the crux of this appeal.

Poole began by filing pro se another § 2255 petition, his second,
challenging the career-offender enhancement in the Maryland federal
district court for the first time. Poole argued that, in light of Judge
Perry’s April 21 order, he had only one eligible prior felony at the
time of his 1997 sentencing and therefore should not have been sub-
jected to the career-offender enhancement. The Maryland federal dis-
trict court denied the motion as successive, instructing Poole to first
obtain authorization from this court.4 This court subsequently denied
Poole’s request for leave to file a successive habeas corpus motion.

Poole also sought relief in the United States District Court for the
Eastern District of Kentucky (the "Kentucky federal district court"),
the jurisdiction in which he was confined, by filing a third petition for
habeas corpus, this time under § 2241 (his first § 2241 petition).5 We
4
A second or successive motion under § 2255 must be denied unless
certified "by a panel of the appropriate court of appeals to contain—(1)
newly discovered evidence . . . ; or (2) a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable." § 2255(h).
5
As explained in more detail below, § 2255 petitions are generally
filed with the original sentencing court, while § 2241 petitions are gener-
ally filed in the district of confinement.
6 UNITED STATES v. POOLE
discuss Poole’s first § 2241 petition in some detail because the matter
on appeal today, his second § 2241 petition, closely tracks the argu-
ments Poole made before the Kentucky federal district court.

In the petition, Poole argued there that he was unlawfully sen-
tenced as a career offender because his 1991 drug conviction could
no longer support the career-offender enhancement. Though recogniz-
ing that habeas petitions of this sort must generally proceed under
§ 2255, Poole contended that relief under § 2241 was available to him
via the so-called "savings clause" of § 2255(e).6

The Kentucky federal district court denied the motion, holding that
Poole’s petition did not fall within the ambit of the savings clause of
§ 2255 because Poole had failed to demonstrate that § 2255 was "in-
adequate or ineffective to test the legality of his detention," § 2255(e).
Relying on Sixth Circuit precedent, the court explained that the sav-
ings clause only preserves claims in which a petitioner claims actual
innocence of his conviction, not just "innocence" of a sentencing fac-
tor. See Poole v. Barron, No. 04-CV-095-KKC, slip op. at 6 (E.D.
Ky. May 26, 2004) (citing Charles v. Chandler, 180 F.3d 753 (6th
Cir. 1999)).7 The court found this result harmonious with the principle
that sentencing errors should generally be addressed by the sentencing
court under § 2255, and that only "in very limited circumstances" can
a distant federal court entertain a challenge to another district court’s
actions. Id. at 4. Poole did not appeal.

Concurrent with his first § 2241 motion in Kentucky, Poole had
also filed a pro se motion in the Maryland federal district court seek-
ing to amend the 1997 judgment against him.8 Shortly after the Ken-
6
The savings clause allows a § 2241 habeas petition to proceed if "the
remedy by [§ 2255] motion is inadequate or ineffective to test the legal-
ity of his detention." § 2255(e).
7
Fourth Circuit precedent has likewise not extended the reach of the
savings clause to those petitioners challenging only their sentence. See
In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000) (outlining the circum-
stances in which "§ 2255 is inadequate and ineffective to test the legality
of a conviction") (emphasis added).
8
Specifically, the motion sought a writ of coram nobis, one of several
common law writs historically available to those seeking post-judgment
 UNITED STATES v. POOLE 7
tucky district court denied Poole’s first § 2241 petition, the Maryland
federal district court likewise denied Poole’s pending motion to
amend its 1997 judgment. In the wake of his failed pro se attempts,
Poole retained counsel. Poole’s counsel moved the Maryland federal
district court to reconsider its denial of his motion to amend the judg-
ment. The court agreed to do so, and scheduled a hearing for May 1,
2006.

Poole’s counsel placed an ex parte telephone call to the Maryland
federal district judge, asking that Poole be permitted to attend the
hearing. The court acquiesced, and on March 30, 2006, issued a writ
of habeas corpus ad testificandum,9 ordering the warden of the Ken-
tucky prison in which Poole was incarcerated to deliver Poole to the
Maryland federal district court for the hearing, and then "to return
said individual at conclusion of proceedings to his original place of
incarceration." J.A. 85.

relief. See Black’s Law Dictionary 362 (8th ed. 2004) (defining coram
nobis as "[a] writ of error directed to a court for review of its own judg-
ment and predicated on alleged errors of fact"). The writ of coram nobis
and several historical analogues have since been collected and codified
in Federal Rule of Civil Procedure 60(b). See Fed. R. Civ. P. 60(b) cmt.
to 1946 amendments. Rule 60(b) now acts as a catch-all, providing for
relief from a final judgment in a number of circumstances, including
when "applying it prospectively is no longer equitable," Fed. R. Civ. P.
60(b)(5) (2003), or for "any other reason that justifies relief," Fed. R.
Civ. P. 60(b)(6) (2003); see also 28 U.S.C. § 1651(a) (permitting courts
to "issue all writs necessary or appropriate in aid of their respective juris-
dictions and agreeable to the usages and principles of law").
9
A writ of habeas corpus ad testificandum may be issued when it is
"necessary to bring [the prisoner] into court to testify." § 2241(c)(5).
Though the statutory seat for the writ lies in § 2241, a petition for a writ
of habeas corpus ad testificandum is decidedly distinct from a petition
seeking habeas relief from incarceration under § 2241(c)(3). The former
is simply a request to have the body of the prisoner transported temporar-
ily for the purpose of giving testimony, and then returned to prison. The
latter represents the real relief sought by Poole, first in the Kentucky fed-
eral district court, then in the Maryland federal district court, and now
here: a writ of habeas corpus issued under § 2241(c)(3) that can, and in
this case, did, free him from his federal sentence.
8 UNITED STATES v. POOLE
As he explained at oral argument, Poole’s counsel realized in the
week before the hearing that the motion to reconsider would likely
fail. See also J.A. 96 (statement of Poole’s counsel at the ad testifi-
candum hearing that the motion had "significant disadvantages proce-
durally and legally" and that, "[b]etween published and unpublished
decisions, the handwriting is on the wall"). He nevertheless appeared
at the hearing and, instead of withdrawing the motion, asked that it
be held in abeyance. With no prior notice to the government of this
change in strategy, Poole’s counsel also made the extraordinary
request that Poole be held in Maryland indefinitely so that he could
file a second § 2241 petition, instead of being returned to Kentucky.
Counsel candidly acknowledged that he sought Poole’s detention in
Maryland solely to enable the Maryland federal district court to assert
jurisdiction over the forthcoming petition. The government objected
to this sudden change in course, explaining that it had no time to con-
sider the appropriateness of the proposed indefinite sequester in
Maryland.

Nevertheless, without allowing the government further time to
develop a response, the Maryland federal district court agreed to keep
Poole in Maryland until Poole’s second § 2241 petition could be filed
and resolved. The court observed that "this [case] has some interest-
ing issues and I think that it’s something that we can give the defen-
dant an opportunity to address and try to find the best vehicle as
possible to get his petition in front of the courts." J.A. 108. The U.S.
Marshal then transferred Poole to the State of Maryland’s Correc-
tional Adjustment Center, which holds federal prisoners pursuant to
an agreement with the United States Marshal Service. Poole quickly
filed a § 2241 petition in the Maryland federal district court, naming
the warden of the Maryland state prison as the respondent, and the
district court ordered a hearing on the petition.

Just before the scheduled hearing, the Maryland federal district
judge personally called a judge of the Maryland state court, Judge
William D. Missouri (Judge Perry having, by then, retired from the
bench), asking for clarification as to the legal effect of Judge Perry’s
April 21, 1997 order. The call was followed up by a letter from one
of the federal district court’s law clerks, asking Maryland state Judge
Missouri "to provide us with an official position from the [Maryland]
Circuit Court as to the legal effect of the April 21, 1997 order." J.A.
 UNITED STATES v. POOLE 9
115. It is not clear on the record whether Judge Missouri responded
to these entreaties before Poole’s § 2241 hearing. In any event, at the
hearing, the court announced that it would refer the question as to the
operative effect of Judge Perry’s April 21 order to the Maryland state
court. Neither Poole nor the government objected. The federal judge
then wrote a letter to Judge Missouri, asking him to "deci[de] . . . the
effect of Judge Darlene Perry’s April 21, 1997 Order." J.A. 116.

Judge Missouri scheduled a hearing on the matter.10 At the hearing,
Poole argued that, by the time of Judge Perry’s June 6 order denying
him relief, she had likely forgotten that she had previously granted
Poole the requested relief. Judge Missouri rejected that explanation,
instead finding that Judge Perry had fallen prey to "an old Defense
attorney’s trick. You submit an order—you request a hearing, . . . and
. . . you include the granting of the relief that you’re seeking a hearing
on. So if the Judge doesn’t read it thoroughly enough, he or she signs
an order and that order grants the relief . . . that you sought." J.A. 149.
Nevertheless, Judge Missouri declared that "public trust and confi-
dence in the Courts dictate that . . . the Court must uphold the signa-
ture of one of [its] members that was sitting, whether that member
meant to sign what the member signed or not." J.A. 150. Judge Mis-
souri not only granted Poole’s motion to alter the state court judg-
ment, but vacated the entire 1991 conviction and set the drug charge
for a new trial. Maryland state prosecutors ultimately decided not to
retry the case.

C.

In light of Judge Missouri’s order, the Maryland federal district
court granted Poole’s § 2241 motion. In doing so, the court first found
jurisdiction over the petition, reasoning that since the Kentucky dis-
trict court denied Poole relief, "if this Court denies Poole’s Section
2241 petition on jurisdictional grounds, it would foreclose the possi-
bility of any court considering the petition on its merits." Poole v.
10
Two months after the informal "referral" to the Maryland state court,
Poole also filed a petition to amend the judgment before the Maryland
state court. As Poole’s counsel explained to this panel at oral argument,
the filing provided a more formal vehicle by which Judge Missouri could
exercise jurisdiction over the question.
10 UNITED STATES v. POOLE
Dotson, 469 F. Supp. 2d 329, 333 (D. Md. 2007).11 Thus, "[i]n an
effort to avoid such a patently unfair result," the court found its exer-
cise of jurisdiction proper. Id.

The court next considered the applicability of the savings clause of
§ 2255. It recognized that this court has found the clause to "appl[y]
in only very limited circumstances." Id. The district court properly
cited the controlling test in this circuit:

[Section] 2255 is inadequate and ineffective to test the legal-
ity of a conviction when: (1) at the time of conviction, set-
tled law of this circuit or the Supreme Court established the
legality of the conviction; (2) subsequent to the prisoner’s
direct appeal and first § 2255 motion, the substantive law
changed such that the conduct of which the prisoner was
convicted is deemed not to be criminal; and (3) the prisoner
cannot satisfy the gatekeeping provisions of § 2255 because
the new rule is not one of constitutional law.

In re Jones, 226 F.3d at 333-34. The district court concluded that
though "Poole cannot satisfy the exact standard announced in Jones[,]
. . . the rationale behind the Jones decision is favorably applicable to
Poole’s situation." Poole v. Dotson, 469 F. Supp. 2d at 335. The dis-
trict court read Jones to stand more generally for the proposition that
a "fundamental defect" occurs when "an individual is incarcerated for
conduct that is not criminal, but through no fault of his own, has no
source of redress." Jones, 226 F.3d at 333 n.3 (explaining the ratio-
nale behind the comparable rule in our sister circuits). Because the
district court found as a fact that Poole had been diligent in pursuing
his rights pro se, and because "Poole stands incarcerated as a career
offender when he is not in fact a career offender," the court concluded
that he "had no source of redress" and should be permitted to pursue
a § 2241 petition via the savings clause of § 2255. Poole v. Dotson,
469 F. Supp. 2d at 335.
11
The Kentucky district court had likewise exercised jurisdiction over
Poole’s first § 2241 petition, but failed to reach the merits of the petition
because it found the savings clause inapplicable. See Poole v. Barron,
No. 04-CV-095-KKC, slip op. at 4.
 UNITED STATES v. POOLE 11
Finally, on the merits of Poole’s § 2241 petition, the district court
held that Judge Missouri’s order vacating Poole’s sentence rendered
the career-offender enhancement inapplicable. Because Poole was
therefore "innocent of [his original] sentence," the court vacated that
sentence and resentenced him without the enhancement. Id. at 339.
Poole was resentenced to 135 months’ imprisonment, and, over the
objection of the government, released from custody. The government
timely appealed.

II.

A.

We begin, as we must, with the question of whether the district
court properly exercised jurisdiction12 over Poole’s second § 2241
habeas petition. "[E]very federal appellate court has a special obliga-
tion to satisfy itself not only of its own jurisdiction, but also that of
the lower courts in a cause under review." Bender v. Williamsport
Area Sch. Dist., 475 U.S. 534, 541 (1986) (internal quotations omit-
ted). We review de novo the district court’s assumption of jurisdiction
over the habeas petition. See United States v. Barton, 26 F.3d 490,
491 (4th Cir. 1994).

Habeas petitions are usually filed under § 2255 in the court that
imposed the prisoner’s sentence. When § 2255 "appears . . . inade-
quate or ineffective to test the legality of his detention," § 2255(e),
however, a federal prisoner may seek habeas relief from the court in
the district of his confinement under § 2241. In re Jones, 226 F.3d at
333-34.

Section 2241 begins, "Writs of habeas corpus may be granted by
the Supreme Court, any justice thereof, the district courts and any cir-
12
The Supreme Court has suggested that the meaning of the term "ju-
risdiction," as used in the habeas statute, is distinct from "the sense of
subject-matter jurisdiction of the District Court." Rumsfeld v. Padilla,
542 U.S. 426, 434 n.7 (2004). We have no occasion in this case to delve
further into the precise meaning of the term, it sufficing to say that "juris-
diction" as used here is a sine qua non of addressing the merits of the
petition. See Strait v. Laird, 406 U.S. 341, 343 (1972).
12 UNITED STATES v. POOLE
cuit judge within their respective jurisdictions." § 2241(a). A § 2241
petition should name as respondent "the person who has custody over
[the prisoner]." § 2242; see also § 2243 ("The writ, or order to show
cause shall be directed to the person having custody of the person
detained.").13 As the Supreme Court explained long ago, "these provi-
sions contemplate a proceeding against some person who has the
immediate custody of the party detained, with the power to produce
the body of such party before the court or judge, that he may be liber-
ated if no sufficient reason is shown to the contrary." Wales v. Whit-
ney, 114 U.S. 564, 574 (1885) (emphasis added). This "immediate
custodian rule" is the default, and is "general[ly] applicab[le] . . . to
habeas petitions challenging physical custody." Padilla, 542 U.S. at
436.

The rule governing jurisdiction naturally follows from the "imme-
diate custodian rule": a district court properly exercises jurisdiction
over a habeas petition whenever it has jurisdiction over the petition-
er’s custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 495 (1973). The question of whether the Maryland federal dis-
trict court had jurisdiction over Poole’s § 2241 petition turns, there-
fore, on whether Poole’s "custodian" was the warden of the Maryland
state prison, over whom the Maryland federal district court has juris-
diction, or the warden of the Kentucky federal prison, Poole’s "origi-
nal place of incarceration" to which he was slated "to return . . . at
[the] conclusion of proceedings [before the Maryland federal district
court]," J.A. 85, over whom the court does not have jurisdiction.

B.

The government argues that the district court wrongly exercised
jurisdiction over Poole’s § 2241 petition because neither its issuance
of the writ of habeas corpus ad testificandum nor its order keeping
Poole in Maryland transmuted Poole’s temporary presence in the dis-
trict into a permanent stay that effected a change in custodian. We
agree.
13
The term "custody" is not defined in the statute.
 UNITED STATES v. POOLE 13
1.

This court has not had the occasion to address the question of
whether an extraterritorial writ of habeas corpus ad testificandum
changes the identity of a prisoner’s "immediate custodian" for pur-
poses of § 2241 jurisdiction. This court has held, however, in a related
context, that the writ of habeas corpus ad prosequendum, issued to
bring a prisoner to his own trial, works a "mere[ ] loan[ ] [of] the pris-
oner to federal authorities" and does not effectuate a change in custo-
dian for purposes of the federal statute criminalizing escape from
federal custody, 18 U.S.C. § 751(a). See United States v. Evans, 159
F.3d 908, 912 (4th Cir. 1998); see also Pelley v. Matthews, 163 F.2d
700 (D.C. Cir. 1947) (holding that a writ of habeas corpus ad prose-
quendum does not effect a change in custodian). Insofar as the writs
of habeas corpus ad prosequendum and habeas corpus ad testifi-
candum are derived from adjacent language in the same statutory sub-
section, see § 2241(c)(5), and because their "statutory antecedents . . .
are exactly the same," Muhammad v. Warden, Baltimore City Jail,
849 F.2d 107, 114 (4th Cir. 1988), it is reasonable to believe that the
writ of habeas corpus ad testificandum would likewise be a "mere[ ]
loan[ ]" that does not effect a change in custody. See Evans, 159 F.3d
at 912.

Moreover, a number of our sister circuits have directly addressed
the effect on custody wrought by issuance of a writ of habeas corpus
ad testificandum. All agree that custody remains in the original place
of incarceration. The Ninth Circuit case of Miller v. Hambrick, 905
F.2d 259 (9th Cir. 1990), is emblematic. In Miller, a federal prisoner
serving time in Texas was called by a California federal court to tes-
tify in a tax case. The prisoner was moved to a detention center in Los
Angeles. Once he arrived, the prisoner filed a § 2241 petition in the
Central District of California, seeking relief from his incarceration.
The district court dismissed the petition for lack of jurisdiction. On
appeal, the Ninth Circuit affirmed, explaining:

The standard writ [of habeas corpus ad testificandum],
requiring transfer of a prisoner to another district in order to
testify, acknowledges that the prisoner is held under the cus-
tody of the person to whom the writ issues and authorizes
only "safe and secure conduct" of the prisoner to where he
14 UNITED STATES v. POOLE
will testify. The writ specifies that "immediately" after giv-
ing his testimony the prisoner shall be returned to the person
holding him. The writ authorizes a trip[,] not a change of
custodians.

Id. at 262. See also United States ex rel. Quinn v. Hunter, 162 F.2d
644 (7th Cir. 1947); Rheuark v. Wade, 608 F.2d 304 (8th Cir. 1979).

Poole concedes that the weight of historical authority is against
him, but argues that the Supreme Court’s recent discussion of the
"immediate custodian rule" in Padilla supports the district court’s
assumption of jurisdiction over his § 2241 petition. We disagree and
read Padilla to substantially support our conclusion. A brief discus-
sion of that case demonstrates the point.

Jose Padilla was apprehended by federal agents in Chicago as he
stepped off a plane from Pakistan. The agents were executing a mate-
rial witness warrant that had been issued by the United States District
Court for the Southern District of New York, seeking Padilla’s testi-
mony in connection with its grand jury investigation into the terrorist
attacks of September 11, 2001. Padilla was then transferred to New
York and held in federal custody. Before being called to testify, how-
ever, Padilla was designated an enemy combatant by order of the
President, and moved by direction of Secretary of Defense Donald
Rumsfeld to the Consolidated Naval Brig in Charleston, South Caro-
lina.

Padilla filed a § 2241 motion in the Southern District of New York,
naming, inter alia, Secretary Rumsfeld and the Commander of the
Naval Brig in Charleston as respondents. The government moved to
dismiss the petition for lack of jurisdiction, arguing that only the brig
Commander was a proper respondent, and, since the district court in
New York did not have jurisdiction over the Commander of the brig
in Charleston, the district court likewise had no jurisdiction to hear
the petition.

The district court in New York rejected the government’s argu-
ments, finding Secretary Rumsfeld to be a proper respondent because
of his personal involvement in Padilla’s custody, and therefore found
that it could exercise jurisdiction over the petition under New York’s
 UNITED STATES v. POOLE 15
long-arm statute. On appeal, the Second Circuit agreed with the lower
court’s jurisdictional analysis. Padilla v. Rumsfeld, 352 F.3d 695,
705-08 (2d Cir. 2003).

The Supreme Court reversed, finding that Rumsfeld was not a
proper respondent to Padilla’s petition and that the district court in
New York did not properly exercise jurisdiction over the petition.
Padilla, 542 U.S. at 430. The Court parried Padilla’s attempts to dis-
tinguish the "unique facts" of his case, instead affirming that the
default "immediate custodian rule" controlled Padilla’s petition just as
it does the core of habeas petitions under § 2241. Id. at 436. The
Court also rejected the Court of Appeals’ conclusion that Secretary
Rumsfeld was an appropriate respondent because he exercised the
"legal reality of control" over Padilla. Id. at 437-48. Instead, the Court
held that "identification of the party exercising legal control only
comes into play when there is no immediate physical custodian with
respect to the challenged ‘custody.’ In challenges to present physical
confinement, we reaffirm that the immediate custodian, not a supervi-
sory official who exercises legal control, is the proper respondent." Id.
at 439. The Court therefore concluded that only the brig Commander,
not Secretary Rumsfeld, was an appropriate respondent to Padilla’s
petition. Id. at 442.

The Court went on to explain that selection of the proper respon-
dent is critical to the question of jurisdiction because, "[i]n habeas
challenges to present physical confinement, . . . the district of confine-
ment is synonymous with the district court that has territorial jurisdic-
tion over the proper respondent." Id. at 444. Combining the issues of
proper respondent and jurisdiction, the Court summarized that the
procedure in § 2241 cases is governed by "a simple rule": "Whenever
a § 2241 habeas petitioner seeks to challenge his present physical cus-
tody within the United States, he should name his warden as respon-
dent and file the petition in the district of confinement." Padilla, 542
U.S. at 447. Because Padilla filed his petition in a different district
than that of his "warden," the brig Commander, the Court held that
the district court lacked jurisdiction to hear it. Id.

Here, Poole seizes upon certain language from Padilla to argue that
the warden of the Maryland state prison was his "immediate custo-
dian" and therefore the proper respondent to his § 2241 petition.
16 UNITED STATES v. POOLE
Poole argues that the warden of the prison in Kentucky in which he
had been serving his sentence was a mere "distant custodian," Appel-
lee’s Br. at 28, akin to the "Attorney General or some other remote
supervisory official" denounced as an inappropriate respondent in
Padilla. See Padilla, 542 U.S. at 435.

Poole takes this language from Padilla out of context. As an initial
matter, the Padilla Court drew a contrast between a prison warden as
"immediate custodian" and a federal agency appointee with only a
nominal connection to a petitioner. This demarcation does not directly
inform the question before us, which is a matter of deciding which
warden, each of whom had control over Poole’s body at some point,
was the "immediate custodian."

Moreover, the Padilla Court explained that the immediate custo-
dian rule "serves the important purpose of preventing forum shopping
by habeas petitioners. Without it . . . . [t]he result would be rampant
forum shopping." Id. at 447. This purpose would be thwarted by a
rule allowing a prisoner to file a § 2241 petition anytime he is able
to secure a hiatus to another jurisdiction. Indeed, the facts of this very
case demonstrate the point. Poole had already had an opportunity to
seek habeas relief in his first § 2241 petition, filed in Kentucky. Hav-
ing had his day in court and lost, Poole was able to procure a second
opinion by filing another, substantially similar petition in a different
jurisdiction. This is precisely the kind of confusion the Padilla Court
warned against: "district courts with overlapping jurisdiction[ ] and
the very inconvenience, expense, and embarrassment Congress sought
to avoid when it added the jurisdictional limitation [on § 2241] 137
years ago." Id.

Followed to its logical end, Poole’s proposed rule might encourage
the proliferation of § 2241 filings by prisoners testifying in jurisdic-
tions outside their district of incarceration. Recognizing this danger,
Poole suggests that we could craft a rule recognizing only a limited
exception to the standard "district of confinement" test, id., allowing
the district court that originally sentenced the prisoner to also exercise
jurisdiction over a § 2241 petition. There is simply nothing in either
the language of the habeas statute or the caselaw interpreting it to sup-
port our carving out a tailor-made exception to provide Poole with the
relief he seeks. Indeed, Poole’s proposed exception is not substan-
 UNITED STATES v. POOLE 17
tially different from the statutory relief granted by Congress when it
first enacted § 2255, allowing an avenue for habeas petitions to be
filed with the original sentencing judge. Absent statutory authority,
we decline to transplant this feature of § 2255 onto the § 2241 habeas
scheme.

2.

Neither do we find the extraordinary actions of the district court—
sequestering Poole in Maryland for the sole purpose of solidifying its
own jurisdiction—a proper circumvention of the immediate custodian
rule contemplated by statute and longstanding precedent.

The district court justified its exercise of jurisdiction based on a
"necessity" rationale of its own creation, relying on the Kentucky fed-
eral district court’s suggestion that "examination of the events of 1997
. . . are issues properly addressed by the Maryland trial and/or appel-
late courts," Poole v. Barron, No. 04-CV-095-KKC, slip op. at 8. In
light of this suggestion, and the reality that a denial of Poole’s petition
may very well "foreclose the possibility of any court considering the
petition on its merits," the district court found jurisdiction "[i]n an
effort to avoid such a patently unfair result." Poole v. Dotson, 469 F.
Supp. 2d at 333.

Tellingly, neither Poole in his brief nor the district court itself cites
to any authority suggesting that jurisdiction that would otherwise be
improper may nevertheless lie based on necessity or a weighing of the
equities. Indeed, the Supreme Court has long held the opposite: "Fed-
eral courts are courts of limited jurisdiction. They possess only that
power authorized by Constitution and statute, which is not to be
expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994). A court is to presume, therefore, that
a case lies outside its limited jurisdiction unless and until jurisdiction
has been shown to be proper. See id. (citing Turner v. Bank of N. Am.,
4 U.S. (4 Dall.) 8, 11 (1799)).

We can find no constitutional or statutory font for the power exer-
cised by the district court here. Holding Poole in Maryland for the
express purpose of securing jurisdiction over his forthcoming § 2241
petition was simply insufficient to circumvent the immediate custo-
18 UNITED STATES v. POOLE
dian rule and create jurisdiction where there was none. We therefore
conclude that neither the issuance of the writ of habeas corpus ad tes-
tificandum nor the retention of Poole in the district conferred jurisdic-
tion on the Maryland federal district court.

III.

Because we hold that the district court did not properly exercise
jurisdiction over Poole’s § 2241 petition, we have no occasion to
address its legal conclusions regarding either the applicability of the
savings clause of § 2255 to these facts or the merits of Poole’s § 2241
petition. We do, however, wish to express some concern regarding
two procedural anomalies that occurred below.

First, we note that the district court, at the ad testificandum hearing,
allowed Poole to abandon the very motion he was there to testify
about, a motion Poole himself recognized was unavailing, and substi-
tute instead a request to be held in Maryland to give him time to file
a different motion altogether.14 Even if the district court was correct
in finding that Poole’s maneuver was not an intentional "transparent
manipulation of the court system," J.A. 105, the end result was the
same—Poole got a second bite at the § 2241 apple by bootstrapping
a § 2241 petition onto an admittedly questionable and quickly aban-
doned motion to amend the 1997 judgment.

Second, considering the numerous legal hurdles Poole faced before
his petition could be heard, let alone granted, the process might have
been better served had he not been released prior to our being
afforded the opportunity to consider these issues of first impression.
Of course, this situation was exacerbated by the government’s failure
to seek a stay of Poole’s release with this court. But because Poole
has already been resentenced and released, we are now in the uncom-
fortable position of ordering reinstatement of the sentence of a freed
man.
14
Nor was the government afforded any time to prepare an argument
that Poole should not be detained in Maryland. See J.A. 98 ("Your
Honor, I’m not sure why we’re here. I thought we were here on the
defendant’s Motion for Reconsideration."); J.A. 101 ("The Government
hasn’t had an opportunity to even review this.").
 UNITED STATES v. POOLE 19
IV.

Because we find that Poole’s immediate custodian remained the
warden of the Kentucky prison in which he was permanently con-
fined, we hold that the district court did not properly exercise jurisdic-
tion over this action. Accordingly, we reverse the decision of the
district court and remand with instructions to reinstate Poole’s origi-
nal sentence of 262 months’ imprisonment.

REVERSED AND REMANDED WITH INSTRUCTIONS