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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

GEORGE MOSS 

Petitioner,

v.

FEDERAL BUREAU OF PRISONS

WARDEN B. G. COMPTON,

Respondent.

Case No. C05-5800FDB

REPORT AND

RECOMMENDATION 

 

 NOTED FOR: 

 APRIL 28th, 2006

This habeas corpus action has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. §§ 636(b)(1)(A) and 636 (b)(1)(B) and Local Magistrates' Rules MJR 3 and MJR 4. 

Petitioner filed the petition as a writ of mandamus, but the case has been considered by the court as a

petition brought under 28 U.S.C. § 2241. See, Order directing service (Dkt. # 4).

FACTS AND SUMMARY

Petitioner was sentenced by the Honorable Franklin D. Burgess in the United States District

Court for the Western District of Washington at Tacoma. (Dkt. # 1 and 8). Petitioner does not

challenge the sentence or conviction but instead alleges he was not properly credited for the amount

of time he spent in state jail. (Dkt. # 1). At the time of filing this petition petitioner was in prison in

Lompoc, California. (Dkt. # 1). The warden of that facility is B. G. Compton. (Dkt. # 1).

Respondent has answered and contends the court lacks in personam jurisdiction over Warden

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REPORT AND RECOMMENDATION

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Compton and that petitioner did not exhaust administrative remedies prior to seeking habeas relief. 

(Dkt. # 8). Having considered the briefing the court agrees it does not have in personam jurisdiction

and therefore does not address the second argument. 

DISCUSSION

Respondent is of the opinion that the proper type of petition to challenge the length of a

sentence or execution of a sentence is a petition under 28 U.S.C. § 2241. Respondent notes that a

petition filed under 28 U.S.C. § 2241 should be filed in the district where the inmate is confined. 

(Dkt. # 8, page 4); citing Dunne v. Henman, 875 F. 2d 244, 248-250 (9th Cir. 1989). The court in

Dunne found the district court to have subject matter jurisdiction and noted the proper petition for a

challenge to the length of confinement was a 2241 petition, but, the court dismissed the petition for

lack of in personam jurisdiction. The court stated:

While 28 U.S.C. § 1391 (e) provides for nationwide service of process on officers of

the United States, that statute does not extend habeas corpus jurisdiction to persons

outside the territorial limits of the district court. We conclude, therefore, that the

district court lacked personal jurisdiction over the named respondent, the Warden of

the United States Penitentiary, Marion Illinois. 

Dunn v. Henman, 875 F.2d at 248 (citations omitted). 

The Dunne case is controlling precedent on this issue. The court lacks jurisdiction over

Warden B. G. Compton and this action should be dismissed for lack of in personam jurisdiction. A

proposed order accompanies this report and recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed.

R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on April 28th, 2006, as noted in the

caption. 

Dated this 10th day of April, 2006. A

Karen L. Strombom

United States Magistrate Judge

Case 3:05-cv-05800-FDB Document 10 Filed 04/10/06 Page 2 of 2