McLean v. Vereen, No. 3:2019cv00104 - Document 52 (N.D.W. Va. 2019)

Court Description: ORDER AND OPINION The Court ADOPTS 32 Report and Recommendations as the Order of the Court and TRANSFERS this matter to the U.S. District Court for the Northern District of West Virginia. Signed by Honorable Richard M Gergel on 06/18/2019.(hada, ) [Transferred from South Carolina on 6/18/2019.]

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McLean v. Vereen Doc. 52 IN THE UNITED ST ATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION William S. McLean, Jr., ) ) Petitioner, ) ) v. ) ) F.C.I. Edgefield Acting Warden W. Vereen, ) ) Respondent. ) Civil Action No. 2: 18-3600-RMG ORDER AND OPINION ) Before the Court is the Report and Recommendation ("R & R") of the Magistrate Judge (Dkt. No. 32) recommending the Court transfer this matter to the District Court for the Northern District of West Virginia. For the reasons set forth below, the Court adopts the R & Ras the Order of the Court and transfers this matter to the District Court for the Northern District of West Virginia. I. Background Petitioner seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2241. When Petitioner initiated this matter, he was incarcerated at F.C.I. Edgefield, located in the District of South Carolina. The Bureau of Prisons then relocated Petitioner to F.C.I. Hazelton in Bruceton Mills, West Virginia, located in the Northern District of West Virginia. The Magistrate Judge now recommends that Petitioner' s action be transferred to that district court as a proper venue with jurisdiction. Petitioner filed a "motion in support" of the R & R. (Dkt. No . 37.) II. Legal Standard The Magistrate Judge makes a recommendation to the Court that has no presumptive weight and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or modify, in whole or in Dockets.Justia.com part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(C). When there are objections to the R & R, the Court "makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. When there are no objections to the R & R, the Court reviews it to "only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Fed. R. Civ. P. 72 advisory committee's note ; see also Camby v. Davis , 718 F.2d 198, 199 (4th Cir. 1983) ("In the absence of objection ... we do not believe that it requires any explanation."). III. Discussion The Court finds that the Magistrate Judge correctly concluded that this matter should be transferred to the District Court for the Northern District of West Virginia. The "proper respondent to a habeas petition is the person who has custody over [the petitioner]." Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). This is because the writ of federal habeas corpus "shall be directed to the person having custody of the person detained." 28 U.S.C. § 2242. "There is generally only one proper respondent to a given prisoner' s habeas petition" and it is the custodian "with the ability to produce the prisoner' s body before the habeas court." Rumsf eld, 542 U.S. at 434-35. Petitioner is no longer in the custody of Acting Warden W. Vereen of F.C.I. Edgefield; he is in the custody of the warden of F.C.I. Hazelton. The Court may, in the interest of justice, sua sponte transfer a matter to the appropriate court rather than dismiss. Feller v. Brock, 802 F.2d 722, n.7 (4th Cir. 1986). The Court finds that transferring this matter to the district with jurisdiction is in the interest of justice so as to afford the parties an opportunity to continue to address Petitioner' s request for relief on the merits. 2 IV. Conclusion For the foregoing reasons, the Court ADOPTS the R & R (Dkt. No. 32) as the Order of the Court and TRANSFERRS this matter to the U.S. District Court for the Northern District of West Virginia. AND IT IS SO ORDERED. United States District Court Judge 2019 Charleston, South Carolina 3

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