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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2003 Decided July 16, 2004
No. 01-5432
CEDRIC STOKES A/K/AABDUS SALAAM MUHAMMED,
APPELLANT
v.
UNITED STATES PAROLE COMMISSION,
APPELLEE
Appeals from the United States District Court
for the District of Columbia
(No. 00cv03075)
Timothy P. O’Toole, Attorney, Public Defender Service of
the District of Columbia, argued the cause for appellant.
With him on the briefs were James W. Klein and Giovanna
Shay, Attorneys.
Edward E. Schwab, Acting Deputy Corporation Counsel,
and Mary L. Wilson, Assistant Corporation Counsel, were on
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
the brief as amicus curiae in support of appellant’s position
on jurisdiction.
John R. Fisher, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, and Elizabeth H. Danello, Robert D. Okun
and Lisa H. Schertler, Assistant U.S. Attorneys. Mary-
Patrice Brown, Assistant U.S. Attorney, entered an appear-
ance.
Before: GINSBURG, Chief Judge, and RANDOLPH and
ROBERTS, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Cedric Stokes challenges the dis-
trict court’s denial of his habeas corpus petition, brought
pursuant to 28 U.S.C. § 2241. In his petition Stokes claimed
the United States Parole Commission violated the Ex Post
Facto Clause of the Constitution of the United States by
denying him parole and determining his parole rehearing date
on the basis of regulations and guidelines promulgated after
the crimes of which he was convicted. On appeal, another
panel of this Court concluded the district court lacked juris-
diction over the proper respondent. When Stokes petitioned
for rehearing, however, that panel vacated its earlier decision.
For the following reasons, we reverse the judgment of the
district court insofar as it purported to exercise jurisdiction
over Stokes’s petition, and remand this case with directions to
dismiss his petition without prejudice.
I. Background
In 1987 Stokes was convicted in District of Columbia
Superior Court of various violations of the D.C. Code. He
was sentenced to consecutive prison terms of 10–30 and of 8–
24 years and to a term of 2–6 years to be served concurrently.
Since August 2000 the United States Parole Commission
has been responsible for making parole determinations with
respect to District of Columbia prisoners. See D.C. Code
§ 24–131(a)(1); National Capital Revitalization and Self–Gov-
ernment Improvement Act of 1997 § 11231, Pub. L. 105–33,
3
111 Stat. 712; Fletcher v. District of Columbia et al., 370 F.3d
1223, (D.C. Cir. 2004). In October 2000 the Commission
denied Stokes parole and put off any rehearing for 48 months.
Each decision represented a departure from the Commis-
sion’s guidelines adverse to Stokes.
Under those guidelines a prisoner with Stokes’s ‘‘Base
Point Score’’ is ordinarily paroled; if such a prisoner is
denied parole, then the guidelines recommend he be given a
rehearing in 12–18 months. The Commission explained that
it departed from the guidelines because it believed Stokes
posed an ‘‘unusual risk to the safety of the community.’’ The
Commission noted in this regard that Stokes was sentenced
for his ‘‘involvement in 3 separate assaults with a deadly
weapon over a period of 7 months,’’ including an incident
during which he ‘‘brutally beat the victim in his head with a
shovel, causing serious bodily injury.’’
Stokes, who is now in a federal facility in South Carolina
but was then incarcerated in a private prison in Ohio, filed a
petition for a writ of habeas corpus in the United States
District Court for the District of Columbia, pursuant to 28
U.S.C. § 2241. In his habeas petition he argued the applica-
tion to him of the Commission’s parole guidelines violated the
Ex Post Facto Clause because the guidelines were promulgat-
ed by the Commission and made applicable to D.C. Code
offenders after the conduct for which he was incarcerated.
The Commission opposed Stokes’s petition, arguing, among
other things, that the district court lacked personal jurisdic-
tion over the only proper respondent — the warden of the
Northeast Ohio Correctional Center — and, in any event, the
Ex Post Facto claim lacked merit.
After a procedural detour of no concern here, the district
court ultimately denied Stokes’s petition because he had not
shown ‘‘application of the Parole Commission’s regulations
‘yields results materially harsher than those ordinarily occur-
ring under the prior regime.’ ’’ Dist. Ct. Mem. Op. at 3,
citing Blair-Bey v. Quick, 159 F.3d 591, 592 (D.C. Cir. 1998).
The district court granted a certificate of appealability, how-
ever, because ‘‘the precise application of the Constitution’s
4
prohibition against ex post facto laws to Parole Commission
regulations’’ was then still unresolved in this circuit.*
On appeal, a different panel of this Court held the district
court lacked jurisdiction over the warden of the Ohio facility
in which Stokes was incarcerated; his petition should there-
fore have been dismissed. The court also noted Stokes could
refile his claim in a judicial district with jurisdiction over the
warden of the Ohio correctional center. Upon Stokes’s peti-
tion for rehearing, we vacated that judgment and invited the
District of Columbia to participate as an amicus curiae. The
District of Columbia is of the view that the district court had
jurisdiction over Stokes’s habeas petition but takes no posi-
tion on the merits of the claims presented therein.
II. Analysis
District courts may grant habeas relief only ‘‘within their
respective jurisdictions.’’ 28 U.S.C. § 2241(a). Because ‘‘[a]
writ of habeas corpus does not act upon the prisoner who
seeks relief, but upon the person who holds him in TTT
custody,’’ Braden v. 30th Judicial Cir. Ct. of Ky., 410 U.S.
484, 494 (1973), a court may issue the writ only if it has
jurisdiction over that person. See Padilla v. Rumsfeld, 2004
WL 1432135, at *5, *9, 542 U.S. , (June 28, 2004).
As an initial matter, it is clear the only proper respondent
to Stokes’s habeas petition was his ‘‘immediate custodian’’—
that is, the warden of the Ohio facility in which he was
incarcerated at the time he filed the petition. See Padilla,
2004 WL 1432135, at *5, 542 U.S. at ; see also Blair-Bey v.
Quick, 151 F.3d 1036, 1039 (D.C. Cir. 1998) (‘‘When a prisoner
seeks to challenge parole-related decisions, the warden of the
prison TTT is the prisoner’s ‘custodian’ ’’); Chatman-Bey v.
Thornburgh, 864 F.2d 804, 810–11 (D.C. Cir. 1988) (en banc)
* We have since resolved the issue, holding parole guidelines are
not ‘‘laws’’ within the proscription of the Ex Post Facto Clause. See
Fletcher, 370 F.3d at . Thus, even if the United States District
Court for the District of Columbia had jurisdiction over his immedi-
ate custodian, Stokes’s claim would have failed on the merits.
5
(‘‘proper defendant in federal habeas cases is the warden’’ of
the facility where prisoner is incarcerated).
Citing Braden v. 30th Judicial District of Kentucky, 410
U.S. 484 (1973), Strait v. Laird, 406 U.S. 341 (1972), and Ex
Parte Mitsuye Endo, 323 U.S. 283 (1944), Stokes argues the
‘‘immediate custodian’’ rule is a ‘‘policy rule[ ],’’ rather than a
‘‘hard and fast limitation[ ] drawn from the plain language of
the applicable habeas statutes.’’ If this theory was once
viable, it clearly is not after Padilla.
‘‘In Braden and Strait,’’ the Padilla Court explained, ‘‘the
immediate custodian rule did not apply because there was no
immediate physical custodian with respect to the ‘custody’
being challenged.’’ Padilla, 2004 WL 1432135, at *6, 542 U.S.
at (emphasis in original). Here there was: At the time
Stokes filed his petition, the warden of the Ohio facility
‘‘exercise[d] day-to-day control,’’ id., over Stokes. The imme-
diate custodian rule therefore applies in this case. See id.;
accord Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986)
(‘‘The Braden decision in no way stands for the proposition
that the Parole Commission is the ‘custodian’ of a prisoner
currently incarcerated in a federal penal institution’’).
Endo is equally unhelpful to Stokes’s cause. Endo, a
Japanese–American citizen of the United States interned in
California by the War Relocation Authority (WRA), brought a
habeas petition in the United States District Court for the
Northern District of California, naming an official of the
WRA as the respondent. While Endo’s petition was pending
before that court, the Government moved her to Utah. The
Supreme Court held the Northern District of California re-
tained jurisdiction over the habeas petition, notwithstanding
that the prisoner — and hence her immediate custodian —
was now in Utah. See 323 U.S. at 306 (‘‘the removal [of the
prisoner] did not cause [the District Court] to lose jurisdiction
where a person in whose custody she is remains within the
district’’).
Endo did not, as Stokes maintains, ‘‘relax’’ the immediate
custodian rule but rather recognized the continuing jurisdic-
6
tion of the court in which that rule is first satisfied. As the
Supreme Court recently explained:
Endo stands for the important but limited proposition
that when the Government moves a habeas petitioner
after she properly files a petition naming her immediate
custodian, the District Court retains jurisdiction and may
direct the writ to any respondent within its jurisdiction
who has legal authority to effectuate the prisoner’s re-
lease.
Padilla, 2004 WL 1432135, at *8, 542 U.S. at .
Thus, if Stokes had filed his petition in the United States
District Court for the Northern District of Ohio, naming the
Ohio warden as the respondent, then under Endo that court
would have retained jurisdiction over his petition notwith-
standing Stokes’s later transfer to the federal penitentiary in
South Carolina where he is now incarcerated. Instead,
Stokes filed his petition in the District Court for the District
of Columbia. Because Stokes was already in Ohio when he
filed, that court never acquired jurisdiction over his petition.
That Stokes had been arrested and convicted in D.C. in 1987
and that he served a portion of his prison term in a D.C.
correctional facility are of no moment under the immediate
custodian rule. See Padilla, 2004 WL 1432135, at *8, 542
U.S. at .
In sum, the warden of the Northeast Ohio Correctional
Center is the only proper respondent to the petition before
us.*
* Stokes and the amicus also argue that under Sanders v. Allen,
100 F.2d 717 (D.C. Cir. 1938), the custodian of a ‘‘D.C. prisoner’’ is
one who ultimately ‘‘controls’’ his release, rather than the warden of
the facility in which he is incarcerated at the time he files his
habeas petition. That is not so, for two reasons. First, in Sanders
and the other cases upon which Stokes relies, the prisoner was
incarcerated in either the Occoquan or the Lorton, Virginia facili-
ty — both of which we held were, as a practical matter, ‘‘jail[s] of
the District,’’ 100 F.2d at 719, because they were owned and
controlled by the District and were located just outside its borders.
The Northeast Ohio Correctional Center clearly does not have a
7
It is equally clear the district court did not have jurisdiction
over the warden of the Northeast Ohio Correctional Center.
Relying again upon the Supreme Court’s decisions in Braden
v. 30th Judicial District of Kentucky, 410 U.S. 484 (1973), and
Strait v. Laird, 406 U.S. 341 (1972), Stokes and the amicus
assert the Supreme Court ‘‘has abandoned an ‘inflexible
jurisdictional rule’ ’’ based upon the territorial jurisdiction of
the district court, ‘‘in favor of explicit reliance on modern
principles of personal jurisdiction and service of process.’’
The Supreme Court’s recent opinion in Padilla unequivo-
cally rejected that theory as well. Concluding that the
limiting language in the habeas statute — ‘‘within their
respective jurisdictions,’’ 28 U.S.C. § 2241(a) — means a
district court may issue the writ only to one who is within its
district, the Court held that in habeas cases involving ‘‘pres-
ent physical confinement, jurisdiction lies in only one district:
the district of confinement.’’ Padilla, 2004 WL 1432135, at
*10, 542 U.S. at . This is necessarily so because in such
cases ‘‘the immediate custodian and the prisoner reside in the
same district.’’ Id. at *11. Therefore, a district court may
not entertain a habeas petition involving present physical
custody unless the respondent custodian is within its territori-
al jurisdiction. Guerra, 786 F.2d at 417. Dicta to the
contrary in the course of our en banc disposition of Chatman-
Bey v. Thornburgh, therefore, have been overtaken by Padil-
la. See 864 F.2d at 813.
III. Conclusion
For the foregoing reasons, the judgment of the district
court purporting to deny Stokes’s petition on the merits is
reversed for want of jurisdiction, and this matter is remanded
similar relationship to the District. Cf. Ex Parte Flick, 76 F.Supp.
979, 981 (D.D.C. 1948), aff’d sub nom. Flick v. Johnson, 174 F.2d
983 (D.C. Cir. 1949). Second, to the extent those cases were
previously susceptible to the reading Stokes and the amicus urge,
they are inconsistent with the Supreme Court’s recent decision in
Padilla and have thus been overruled.
8
to the district court so that it may dismiss the petition
without prejudice.
So ordered.