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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jay Anthony Richitelli, 

Petitioner, 

v. 

John T Shartle, et al., 

Respondents.

No. CV-15-00410-TUC-RM (BPV)

REPORT & RECOMMENDATION 

 Pending before the Court is Petitioner’s Amended Petition under 28 U.S.C. § 2241 

for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 16). Respondent has 

filed a Return and Answer (Doc. 20), and Petitioner has filed a Reply (Doc. 26). 

 Pursuant to the Rules of Practice of this Court, this matter was referred to the 

undersigned Magistrate Judge for a Report and Recommendation. For the following 

reasons, the Magistrate Judge recommends that the District Court transfer this action to 

the United States District Court for the Eastern District of Texas. 

I. FACTUAL & PROCEDURAL BACKGROUND

 Petitioner is an inmate currently incarcerated at the Federal Detention Center in 

Oakdale, Louisiana. (Answer at 2 (citing Answer, Exh. A); see also Reply). Petitioner is 
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serving a life sentence for Conspiracy to Commit a Hobbs Act Robbery and Attempted 

Hobbs Act Robbery. (Answer at 2 (citing Answer, Exh. A, Att. 2)). Additionally, 

Petitioner has also been sentenced to a concurrent 240-month sentence for Conspiracy to 

Use a Firearm during the Commission of a Crime of Violence, a concurrent 180-month 

sentence for Use of a Firearm during the Commission of a Crime of Violence, and a 

consecutive 60-month sentence for Possession of a Firearm by a Convicted Felon. (Id.). 

With his Amended Petition, Petitioner challenges “the Federal Bureau of Prisons 

disciplinary hearings that resulted in actual potential delays to his release....” (Amended 

Petition at 4). 

 Petitioner has been designated to a number of Bureau of Prisons facilities during 

the service of his current sentence. (See Answer at 2 (citing Answer, Exh. A, Att. 3 at 1-

4)). The record reflects that prior to initiation of the instant action, Petitioner was 

transferred to the United States Penitentiary at Tucson, Arizona, pursuant to a federal 

writ. (Answer at 2 (citing Answer, Exh. A, Att. 1 at 1-2)). However, when Petitioner 

filed the initial petition, he was incarcerated at the USP in Florence, Colorado. (Petition 

(Doc. 1); Answer at 3 (citing Exh. A, Att. 3 at 1); Answer, Exh. A at ¶ 6; January 15, 

2016 Initial Screening Order at 1 (Doc. 6)). In his original petition, Petitioner named as 

respondent Warden John T. Shartle, who is the Warden at USP-Tucson. (See Petition at 

1; Initial Screening Order at 2-3; Answer at 3). The Court denied the Petition with leave 

to amend because Petitioner did not use the court-approved form petition. (Initial 

Screening Order at 2-4). The Court also pointed out that: 

[i]n addition to failing to use the court-approved form petition, Petitioner 

also failed to name a proper respondent. “Where a prisoner files an action 

under section 2241, ‘the prisoner must name the warden of the penitentiary 

where he is confined as a respondent.’” Johnson v. Reilly, 349 F.3d 1149, 

1153 (9th Cir. 2003) (quoting Allen v. Oregon, 153 F.3d 1046, 1050 (9th 

Cir. 1998)). “‘Failure to name the petitioner’s custodian as a respondent 

deprives federal courts of personal jurisdiction.’” Id. (quoting Stanley v. 

California Sup. Ct., 21 F.3d 359, 360 (9th Cir. 1994)). 

(Id. at 2-3). Petitioner was granted leave to file an amended petition on the courtapproved form and he was advised that he “should name a proper respondent, as 
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discussed above.” (Id. at 3; see also id. (“Petitioner must submit the amended petition on 

the court-approved form, name the federal officer having custody of him as a respondent, 

allege a violation of his constitutional rights, and sign the amended petition under penalty 

of perjury.”)). 

 By the time Petitioner filed his Amended Petition, he had been designated to the 

USP at Beaumont, Texas. (Answer, at 2; Answer, Exh. A at ¶6; see also Amended 

Petition at 1). In compliance with the Court’s directive in its initial screening order, 

Petitioner named as the respondent, Warden Frank Lara, who was Petitioner’s 

“immediate custodian” when Petitioner filed the Amended Petition. (Answer at 3). In 

screening the Amended Petition, the Court called for an answer. (June 17, 2016 

Screening Order (Doc. 17)). By the time the Court’s Screening Order reached Petitioner, 

he had already been designated to FCI Oakdale II in Louisiana. (See Doc. 21 (Screening 

Order returned to the Court indicating Oakdale address); Petitioner’s July 20, 2016 

Notice of Change of Address (Doc. 22); August 9, 2016 Order (Doc. 24) (directing Clerk 

to send the June 17, 2016 Screening Order and Respondent’s Answer, in addition to other 

documents, to Petitioner at FCI Oakdale); Answer at 2). 

Discussion

 Respondent seeks dismissal of the instant action for lack of jurisdiction. 

Alternatively, Respondent requests that the Court transfer the action to the district of 

Petitioner’s confinement. Petitioner asserts that this Court has jurisdiction to decide his 

action, but does not provide a basis as to why that is so. (See Reply). 

 Under 28 U.S.C. § 2241, district courts are “limited to granting habeas relief 

‘within their respective jurisdictions.’” Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) 

(quoting 28 U.S.C. § 2241(a)). A writ of habeas corpus operates not upon the prisoner, 

but upon the prisoner’s custodian. Braden v. 30th Judicial Circuit Court of Kentucky, 

410 U.S. 484, 494–495 (1973). Therefore, as the Court previously explained to Petitioner 

in the Initial Screening Order, a petitioner filing a petition for writ of habeas corpus under 

§ 2241 “must name the warden of the penitentiary where he is confined as a respondent.” 
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Johnson, 349 F.3d at 1153. See also Padilla, 542 U.S. at 434, 446-47 (“In challenges to 

present physical confinement, we reaffirm that the immediate custodian...is the proper 

respondent.”). Additionally, to issue the writ, “[t]he court...must have personal 

jurisdiction over the custodian.” Malone v. Calderon, 165 F.3d 1234, 1237 (9th Cir. 

1999) (citing Braden, 410 U.S. at 495; Subias v. Meese, 835 F.2d 1288, 1289 (9th 

Cir.1987)). “Without such jurisdiction, the court has no authority to direct the actions of 

the restraining authority.” Id. (citing Subias, 835 F.2d at 1289). It is sufficient if the 

custodian is in the territorial jurisdiction of the court at the time the petition is filed, and 

once jurisdiction has been properly established, transfer of the petitioner thereafter does 

not defeat personal jurisdiction. See Francis v. Rison, 894 F.2d 353, 354 (9th Cir. 1990). 

See also Padilla, 542 U.S. at 441 (“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 release.”). Thus, Respondent is correct that Warden 

Lara’s “absence from the territorial jurisdiction of this Court ‘is fatal to habeas 

jurisdiction.’” (Answer at 4 (quoting Padilla, 542 U.S. at 445)). 

 Respondent requests that the Court enter dismissal for lack of jurisdiction over the 

respondent or, alternatively, to transfer the matter. “Under a provision of the Federal 

Courts Improvement Act, 28 U.S.C. § 1631[1], if a court finds that there is a want of 

jurisdiction, the court shall transfer the action to any other such court in which the action 

could have been brought, ‘if it is in the interest of justice.’” Miller v. Hambrick, 905 F.2d 

259, 262 (9th Cir. 1990) (applying §1631 to sua sponte transfer §2241 proceeding). The 

 

1

 Title 28 U.S.C. § 1631 states: 

Whenever a civil action is filed in a court as defined in section 610 of this 

title or an appeal, including a petition for review of administrative action, is 

noticed for or filed with such a court and that court finds that there is a want 

of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or 

appeal shall proceed as if it had been filed in or noticed for the court to 

which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred. 
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statute “serves to ‘aid litigants who were confused about the proper forum for review.’” 

Id. (quoting In re McCauley, 814 F.2d 1350, 1351-52 (9th Cir. 1987)). The Ninth Circuit 

has observed that “[n]ormally transfer will be in the interest of justice because normally 

dismissal of an action that could be brought elsewhere is time-consuming and justicedefeating.” Id. (internal quotation marks and citation omitted). Consequently, the Ninth 

Circuit “ha[s] rarely found that transfer would not serve the interest of justice.” Amity 

Rubberized Pen Co. v. Market Quest Group, Inc., 793 F.3d 991, 996 (9th Cir. 2015) 

(citing instances of bad faith or frivolous claims as factors militating against transfer, and 

rejecting out-of-circuit decisions requiring the transferring court to “‘peek at the merits’ 

of the underlying action to determine whether a particular case is meritorious enough to 

justify transfer.”) 

 “Transfer is appropriate under § 1631 if three conditions are met: (1) the 

transferring court lacks jurisdiction; (2) the transferee court could have exercised 

jurisdiction at the time the action was filed; and (3) the transfer is in the interest of 

justice.” Cruz-Aguilera v. I.N.S., 245 F.3d 1070, 1074 (9th Cir. 2001) (citation omitted). 

Where the requirements for transfer are met, the district court’s failure to exercise 

discretion to transfer sua sponte “constitutes an abuse of discretion.” Miller, 905 F.2d at 

262 (stating that no motion to transfer is necessary) (citation omitted). Petitioner’s case 

satisfies all three requirements for transfer. This Court lacks jurisdiction to entertain 

Petitioner’s habeas action. The District Court for the Eastern District of Texas has 

jurisdiction under 28 U.S.C. § 2241 to consider Petitioner’s Amended Petition given that 

Warden Lara was the proper respondent at the time the Amended Petition was filed with 

this Court. Transfer in this case would serve the interest of justice by preventing any 

further unnecessary delay caused by requiring Petitioner to re-file. Transfer to the 

District Court for the Eastern District of Texas is appropriate even though Petitioner is no 

longer incarcerated at that District because, when Petitioner filed his Amended Petition, 

his action “could have been brought” in that court. See 28 U.S.C. § 1631. Cf. Padilla, 

 
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542 U.S. at 441 (subsequent transfer does not defeat jurisdiction). 

Recommendation

 For the foregoing reasons, the Magistrate Judge recommends that the District 

Court enter an order transferring this action to the U.S. District Court for the Eastern 

District of Texas. 

 Pursuant to 28 U.S.C. §636(b) and Rule 72(b)(2) of the Federal Rules of Civil 

Procedure and LRCiv 7.2(e), Rules of Practice of the U.S. District Court for the District 

of Arizona, any party may serve and file written objections within FOURTEEN (14) DAYS

after being served with a copy of this Report and Recommendation. A party may respond 

to another party’s objections within FOURTEEN (14) DAYS after being served with a copy. 

Fed.R.Civ.P. 72(b)(2). No replies to objections shall be filed unless leave is granted from 

the District Court to do so. If objections are filed, the parties should use the following 

case number: CV 15-00410-TUC-RM. 

 Failure to file timely objections to any factual or legal determination of the 

Magistrate Judge may be deemed a waiver of the party’s right to review. 

 The Clerk of Court is directed to send a copy of this Report and Recommendation 

to the parties. 

 Dated this 3rd day of November, 2017.