UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jan F. Becker

v. Civil No. 08-cv-185-SM

Margaret Blighter, et al.

REPORT AND RECOMMENDATION

Pro se petitioner Jan F. Becker has filed a petition for a

writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging 

his Ohio conviction and confinement (document no. 1). The

petition is before me for preliminary review. See Rule 4 of the

Rules Governing § 2254 Proceedings (“Habeas Rules”) (requiring

initial review to determine whether the petition is facially

valid); see also United States District Court for the District of

New Hampshire Local Rule (“LR”) 4.3(d)(2) (authorizing the

magistrate judge to preliminarily review pro se pleadings). For

the reasons stated below, I recommend that the petition be

dismissed for lack of subject matter jurisdiction.

Habeas Rule 4 provides, in part: “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

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the petition and direct the clerk to notify the petitioner.” In

accordance with this rule, the instant petition must be dismissed

for failure to comply with the “immediate custodian” and

“district of confinement” rules applicable to habeas petitions. 

See Rumsfeld v. Padilla, 542 U.S. 426, 435, 443 (2004)(holding

that the proper respondent is the warden of the facility where

the petitioner is being held, and that jurisdiction for core

habeas petitions challenging present physical confinement lies

only in the district of confinement). Becker is currently

incarcerated at the Marion Correctional Institution in Marion,

Ohio. Thus, the sole proper respondent in this action is the

warden of that facility. Id. at 435. In addition, this Court is

not the proper venue for the petition because Becker is neither

detained in this district nor challenging a sentenced imposed by

the State of New Hampshire. Id. at 443.

While this Court has discretion to dismiss the petition or,

“if it be in the interest of justice,” to transfer it to the

appropriate court, 28 U.S.C. § 1406(a), a transfer to the United

States District Court for the Northern District of Ohio would be

futile. The record reveals that Becker has previously filed

similar and numerous unsuccessful petitions in the Ohio federal

courts and other courts throughout the United States. See Becker

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v. Hudson, No. 8:07-cv-372, 2007 WL 3376751, slip op. at * 1 (D.

Neb. Nov. 8, 2007). Furthermore, the United States District

Court for the Northern District of Ohio has enjoined Becker from

filing lawsuits in that district without first obtaining leave of

the court. Id. For the foregoing reasons, I recommend that the

petition be dismissed for lack of subject matter jurisdiction.

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the petition. If the

petitioner disagrees with the identification of the claims

herein, he must do so by filing an objection within ten (10) days

of receipt of this report and recommendation, or by properly

moving to amend the petition. 

Any further objections to this report and recommendation

must be filed within ten (10) days of receipt of this notice. 

Failure to file objections within the specified time waives the

right to appeal the district court’s order. See 28 U.S.C. §

636(b)(1); Unauthorized Practice of Law Committee v. Gordon, 979

F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-Copete,

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792 F.2d 4, 6 (1st Cir. 1986).

________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 19, 2008

cc: Jan F. Becker, pro se

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