IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 10-cv-03148-BNB
John W Walsh
Prisoner No. 105021
Limon Correctional Facility
49030 State Hwy. 71
Limon, CO 80826

| hereby certify that | have mailed a copy of the ORDER to the above-named
individuals on February 16, 2011.

GREGORY C. LANGHAM, CLERK

on LE

Deputy Clerk


continued to hold that a case is properly transferred to the jurisdiction of conviction
when the petitioner is housed in another state only for the convenience of and pursuant
to a contractual relationship with the state wherein the conviction was rendered.”
Holder v. Curley, — F. Supp.2d —, 2010 WL 4366454 (E.D. Mich. Oct. 28, 2010). The
same logic applies in the instant action because the warden of the Colorado prison in
which Mr. Walsh is being held is not the true custodian with respect to the claims he is
asserting. Therefore, the Court finds that it is appropriate and in the interest of justice
to transfer this action to a district court in Florida pursuant to 28 U.S.C. § 1404(a).
Because the address Mr. Walsh provides for the Governor of the State of Florida is in
Tallahassee, Florida, the instant action will be transferred to the United States District
Court for the Northern District of Florida. See 28 U.S.C. § 89(a). Accordingly, it is

ORDERED that the clerk of the Court transfer this action to the United States
District Court for the Northern District of Florida.

DATED at Denver, Colorado, this 15th day of February, 2011.

BY THE COURT:

Li Keer emabiene

ZITA LEESON WEINSHIENK, Senior Judge
United States District Court



IN THE UNITED STATES DISTRICT COURT FILED
FOR THE DISTRICT OF COLORADO —'NTEQSATES DisTRIcr coun

Civil Action No. 10-cv-03148-BNB Fed 16 2011
JOHN W. WALSH, GREGORY C. LANGHAM
CLERK
Applicant,
v.

CHARLIE CRIST, Governor of the State of Florida, and
ANGEL MEDINA, Warden, Limon Correctional Facility,

Respondents.

ORDER TRANSFERRING CASE

Applicant, John W. Walsh, is incarcerated at the Limon Correctional Facility in
Limon, Colorado. Mr. Walsh has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 claiming that the State of Florida has violated his
constitutional rights in connection with his request to be transferred to a prison in
Canada pursuant to the Treaty Between the United States of America and Canada on
the Execution of Penal Sentences, Mar. 2, 1977, 30 U.S.T. 6263. Mr. Walsh alleges
that he is a citizen of Canada and that he is serving a Florida prison sentence. He
further alleges that he was transferred from Florida to Colorado in 2000 pursuant to an
interstate corrections compact. As relief he asks the Court to order the Governor of the
State of Florida to process his application for a transfer to Canada under the terms of
the treaty and to oversee the process to ensure that he is not denied equal protection.

The Court must construe the application liberally because Mr. Walsh is not

represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall


v. Bellmon, 935 F.2d 1106, 1110 (10" Cir. 1991). However, the court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, this action will be transferred to the United States District Court for the Northern
District of Florida.

Pursuant to 28 U.S.C. § 2241(a), a writ of habeas corpus may be granted by “the
district courts and any circuit judge within their respective jurisdictions.” The United
States Supreme Court has interpreted this provision as requiring jurisdiction over the
applicant's custodian “even if the prisoner himself is confined outside the court's
territorial jurisdiction.” See Braden v. 30" Judicial Circuit Court of Ky., 410 U.S. 484,
495 (1973). The Supreme Court reached this conclusion because “[t]he writ of habeas
corpus does not act upon the prisoner who seeks relief, but upon the person who holds
him in what is alleged to be unlawful custody.” /d. at 494-95.

The proper respondent in a habeas corpus action is “the person who has
custody over [the applicant].” 28 U.S.C. § 2242; see also 28 U.S.C. § 2243 (‘The writ,
or order to show cause shall be directed to the person having custody of the person
detained.”). In most cases, there is “only one proper respondent to a given prisoner's
habeas petition,” and the proper respondent generally is “the warden of facility where
the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004).
However, “the immediate physical custodian rule, by its terms, does not apply when a
habeas petitioner challenges something other than his present physical confinement.”
Id. at 438. Instead, a habeas applicant “who challenges a form of ‘custody’ other than
present physical confinement may name as respondent the entity or person who

exercises legal control with respect to the challenged ‘custody.” Id. For example, the

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prisoner in Braden was serving a sentence in an Alabama prison pursuant to an
Alabama conviction but he was challenging a detainer lodged against him in Kentucky
state court. See Braden, 410 U.S. at 486-87. The Supreme Court held that the
Kentucky court, rather than the Alabama warden, was the proper respondent because
the Alabama warden was not “the person who [held] him in what [was] alleged to be
unlawful custody.” Id. at 494-95.

As noted above, Mr. Walsh is serving a Florida sentence in a Colorado state
prison pursuant to a contractual agreement between the State of Florida and the State
of Colorado. He names as respondents both the warden of the Colorado prison in
which he is incarcerated and the Governor of the State of Florida. However, Mr.
Walsh's claims in this action do not relate to his present physical confinement in the
State of Colorado. Instead, Mr. Walsh is challenging actions taken by the State of
Florida with respect to his request to be transferred to a prison in Canada pursuant to a
treaty between the United States and Canada and the relief he seeks cannot be
obtained by a writ of habeas corpus directed to a prison warden in Colorado.
Therefore, the Court finds that the Colorado warden is not a proper respondent
because the Colorado warden does not “exercise[] legal control with respect to the
challenged ‘custody.” Padilla, 542 U.S. at 438.

The next question, then, is whether the Court may transfer this action to an
appropriate district court in Florida. Although Mr. Walsh is not challenging the validity of
his Florida conviction, the Court finds that cases in which prisoners incarcerated in one
state challenge their convictions in other states are similar to the instant action. In

those circumstances, district courts considering both Padilla and Braden “have

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