PEITIONERS' REPLY TO MOTION TO DISMISS PETITION FOR WRIT OF HABEAS COURPUS

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06844475
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 32
• Document Creation Date: March 9, 2023
• Document Release Date: September 28, 2020
• Case Number: F-2016-02028

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
JOSE PADILLA,
DONNA R. NEWMAN, As Next
Friend of Jose Padilla
Petitioners,
-against-
GEORGE W. BUSH
Ex officio Commander-in-Chief of US
Armed Forces
DONALD RUMSFELD
Secretary of the Defense
JOHN ASHCROFT'
Attorney General
U.S. Department of Justice
COMMANDER M.A. MARR
Consolidated Naval Brig
Respondents.
petitioners'
Reply to Motion To Dismiss
Petition For Writ of Habeas Corpus
02 Civ. 4445 (MBM)
x
Preliminary Statement
While denying Jose Padilla access to both this court and his counsel, the Government has the
temerity to object to Donna R. Newman, Esq., acting as Mr. Padilla's "next friend" to institute this
Petition for Writ of Habeas Corpus. It is respectfully submitted, that in light of Mr. Padilla's
unavailability, Ms. Newman, who is Mr. Padilla's attorney, who has met with Mr. Padilla numerous
'Petitioners agree to remove Attorney General Aschroft as a Respondent from this
Petition.
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times, appeared in court on his behalf, filed motions on his behalf, satisfies all the requirements to
act as "next friend."
Additionally, and in complete disregard for the clear reading of � 2241(a)2 in conjunction
with � 2242 and the case law interpreting 28 U.S.C. � 2241, et. seq., the government contends that
this Court is without jurisdiction to issue the writ because this Court lacks jurisdiction over
Commander Marr, whom the government contends is the one and only proper respondent.
Government Brief ("Gov't Br.") at 11. The government argues that the "custodian" for habeas
purposes must be the "immediate custodian", i.e. the custodian with the day-to-day responsibility
for the prisoner, since it is this custodian who can release the prisoner should the writ be granted.
5it , Gov't Br. at 16.
The government further claims that, in as much as, President Bush4 or Secretary Rumsfeld,
are not Padilla's "immediate custodians", they are not proper respondents in this case. d, at 11, 14.
Moreover, the government asserts, since the custodian must be within this Court's "territorial
2
3
28 U.S.C. � 2241(a) provides:
(a) Writs of habeas corpus may be granted by the Supreme Court, any
justice thereof, the district courts and any circuit judge within their
respective jurisdictions. The order of a circuit judge shall be entered
in the records of the district court of the district wherein the restraint
complained of is had.
28 U.S.C. � 2242 provides in pertinent part:
Application for a writ of habeas corpus shall be in writing
signed and verified by the person for whose relief it is intended or by
someone acting in his behalf.
It shall allege the facts concerning the applicant's commitment
or detention, the name of the person who has custody over him and
by virtue of what claim or authority, if known.
4 The government also asserts that President Bush is an improper respondent since
the court lacks the authority to ever enjoin the President in the performance of his official duties.
agg, Gov't Br. at 14, Astg, discussion below.
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jurisdiction", and Commander Marr is not, this Court lacks jurisdiction over Marr and ipso facto,
over this Petition. The government's arguments lack merit and suffer from an incorrect analysis
of the facts and law.
Respondent President Bush as Commander in Chief and Secretary of the Defense Rtunsfeld,
ordered' and directed, Padilla's arrest, the transfer of his custody from the Department of Justice to
the Department of Defense, the situs of his detention and the conditions of his detention. Based on
the facts and circumstances of this case, Respondents Bush and Rumsfeld are Padilla's custodians.
They can deliver the "body" while in fact Commander Marr lacks the authority to do so. Further, all
Respondents have and had sufficient contacts to the Southern District of New York, through their
activities, the activities of those within their chain of command and through the activities of agents
acting on their behalf, to make each amendable to process within the Southern District ofNew York.
The Southern District of New York is the proper venue for this Petition, in light of the background
of this case and for the convenience of the parties. This Court has jurisdiction over these
Respondents and this petition. There is no jurisdictional bar to this Court deciding the merits of this
Habeas Corpus Petition.
Furthermore, Padilla's absence from this district and his inability to execute his habeas
petition are due entirely to the action of these Respondents This Court having had jurisdiction
originally, in this instance should retain jurisdiction. Accordingly, it is respectfully submitted that
5 Attorney General Ashcroft in his announcement to the Press on June 10, 2002
referenced an Order issued by President Bush declaring Padilla an "enemy combatant" and which
authorized Mr. Padilla's arrest and detention. Counsel has requested a copy of the Order from the
Department of Defense, White House Counsel's Office, and the United States Attorney's Office
for the Southern District of New York. She was advised that she would not be provided with a
copy and would not be permitted to view this Order. The contents of the Order remain unknown.
It is also unknown if in fact a written Order exists. At a minimum, this Court should order the
government to provide the Court with a copy to be viewed "in camera" and z gang to enable
this Court to ascertain its relevance to the pending motion.
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the Government's motion to dismiss Padilla's writ of habeas corpus should be denied.
Facts`
Jose Padilla is an American citizen by virtue of having been born in Brooklyn, New York.
Mr. Padilla was arrested outside of Chicago, Illinois at O'Hare International Airport on May
8,2002, by agents of the Federal Bureau of Investigation. Mr. Padilla was not arrested on criminal
charges, but rather was arrested on a material witness warrant for a grand jury which had been
convened in the Southern District ofNew York. The order which authorized Mr. Padilla's arrest had
been signed by the Honorable Michael B. Mukasey, Chief Judge of the United States District Court
for the Southern District of New York
On May 15, 2002, Mr. Padilla was produced in court before Judge Mulcasey who assigned
Donna R. Newman, Esq., to represent Mr. Padilla. Ms. Newman conferred with her client both when
at Court and at the Metropolitan Correctional Center. She met with him on at least nine occasions
for a total of approximately eighteen hours. She also met and conferred with the government,
represented by United States Attorney's Office for the Southern District of New York about matters
relating to her client's detention. She appeared before this Court at least two times with her client.
Further, acting as Mr. Padilla's attorney, Ms. Newman filed motions with the Court contesting the
legality of Mr. Padilla's detention as a potential grand jury witness. The government filed papers
in opposition to the relief Ms. Newman sought for her client Those motions were scheduled to be
heard by this Court on the morning of Tuesday, June 11, 2002.
On Sunday June 9, 2002, before the Court could rule on the pending motions, President
We note that the government's "Background" statement (Government Brief at 3-6) is in
reality unverified facts and legal arguments relating to the merits of the Petition. Petitioners
contest the statements and legal arguments contained therein. Further, that section although
included in a motion characterized as the government's Motion to dismiss can be viewed as the
government's substantive Answer to the Petition. Therefore, having answered the Petition, the
government has waived its jurisdictional objections.
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Bush, in his role as Commander-in-Chief and acting on the advice of Attorney General Ashcroft and
Secretary of Defense Rumsfeld, issued an Order finding Mr. Padilla to be an "unlawful combatant".
Mr. Padilla, without notice to counsel, was transferred in the Southern District of New York from
the custody of the Department of Justice to the custody of the Department of Defense. Mr. Padilla
was placed under arrest by the Department of Defense for the purpose of his being interrogated. He
was taken to South Carolina and placed in the brig at the Consolidated Naval Base.
The transfer of Mr. Padilla' s custody and his arrest in this district was made possible through
the efforts, assistance and cooperation of the United States Attorney's Office in this district. Among
other things, to enable Mr. Padilla to be seized by agents from the Department of Defense, on June
9, 2002, the United States Attorney's Office had their grand jury material witness warrant
withdrawn. Ms. Newman, while the aforementioned motions were still pending before this Court',
filed a writ of habeas corpus on June 11, 2002 which was amended on June 20, 2002. The
government has refined to respond to the merits of the writ and has brought a motion to dismiss the
writ on jurisdictional grounds.
Mr. Padilla remains at the Naval Brig in Charleston, South Carolina. Ms. Newman has been
informed that she will not be permitted to meet or communicate by any means with Mr. Padilla by
representatives of the Department of Defense and the United States Attorney's Office for the
Southern District of New York. Accordingly, Ms. Newman has been blocked from obtaining Mr.
Padilla' s signature on the petition. Mr. Padilla has not been charged with any offense under either
civil or military law.
Other than the government's unilateral decision to hold Mr. Padilla in Charleston, there is
'The Court on June 13,2002 determined that in light of the withdrawal of the material
witness warrant, these motions were moot.
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no nexus between South Carolina and this litigation. In other post-September 11th matters, the
government has elected to criminally prosecute both John Phillip Walker Lindh (an American citizen
taken into custody in Afghanistan) and Zacarias Moussaoui (a French national arrested in Minnesota)
within the geographic area of the United States Court of Appeals for the Fourth Circuit. The
Government has elected to hold Yaser Esam Hamdi (an American citizen taken into custody in
Afghanistan) on a military base that is within the geographic area of the Fourth Circuit Court of
Appeals. Now the government has transferred Mr. Padilla from this district to Charleston, South
Carolina which is also in the geographic area of the Fourth Circuit Court of Appeals.
Point I
Donna Newman Has "Next Friend" Standing to Bring This Habeas Petition
28 U.S.C. �2242 requires an application for a writ of habeas corpus shall be in writing,
signed and verified by the person for whose relief it is intended or by someone acting in his behalf.
The government's contention that Donna Newman lacks "next friend" standing to bring this habeas
petition on behalf of Jose Padilla lacks merit.
In Whitmore v. Arkansas, 495 U.S. 149 (1990), the Supreme Court found that there were two
prerequisites for standing as a "next friend", first there must be an explanation as to why the party
for whom the relief is sought cannot sign and verify the writ. "Most frequently, "next friends" appear
in court on behalf of detained prisoners who are unable, usually because of mental incompetence or
inaccessibility, to seek relief themselves." Whitmore at 160. "Second, the "next friend" must be truly
dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been
further suggested that a "next friend" must have some significant relationship with the real party in
interest." Whitmore, at 163( internal citation omitted). Simply stated, the Court requires a person
seeking relief to sign and verify the Petition personally, but if they are unavailable then the "next
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friend" may bring the petition on behalf of the party seeking relief if the "next friend" can show why
the true party in interest is unavailable and that the "next friend" has a significant relationship with
the true party in interest. The Whitmore court found that "These limitations on the" next friend"
doctrine are driven by the recognition that it was not intended that the writ of habeas corpus should
be availed of, as matter of course, by intruders or uninvited meddlers, styling themselves next
friends." Whitmore at 164.
The Court requited a significant relationship between the true party in interest and the "next
friend" both to ensure that valid matters were zealously litigated and to prevent a flood of litigation
in the guise of habeas petitions by those interested in a particular issue or cause but who had no real
tie to the litigation at hand. It is clear that Ms. Newman satisfies the requirements of Whitmore to
act as next friend in this matter.
The first Whitmore prong, the unavailability of the true party in interest, is readily satisfied.
The government does not dispute that Jose Padilla cannot sign the Petition himself because the
government has made him inaccessible by the government's own refusal to allow counsel to have
access to Padilla to permit him to sign and verify a petition in his own name.'
In Whitmore, the Supreme Court requires that a "next friend" have a significant relationship
with the true party in interest. It is respectfully submitted that an attorney-client relationship is a
In this case, Padilla's unavailability is unquestioned. Virtually all of the cases relied
on by the Government (Massie ex re. Kroll v. Woodford, 244 F.3d 1192, (9th Cir. 2001); Miller ex
rel. Jones v: Stewart, 231 F.3d 1248 (9th Cir. 2000); Ford v. Haley, 195 F.3d 603 (11th Cir. 1999);
1KFALLIARLINg, 159 F.3d 1161(9th Cir. 1998); Jn re Heidnik, 112 F.3d 105 (3d Cir. 1997); In re
Zettlemover, 53 F.3d 24 (3d Cir. 1995); Brewery. Lewis, 989 F.2d 1021(9th Cir. 1993); Smith ex
fel. Missouri Publ Defender Comm'n v. Armontrout, 812 F.2d 1050 (8th Cir. 1987); Schomhorst v.
Anderson, 77 F. Supp 2d 944 (S.D. bid. 1999); Davis v. Austin, 439 F.Supp. 273 (N.D.
Ga.1980)]concem what is known in capital litigation as "volunteers" that is individuals who have
in some manner indicated that they do not want anyone to interfere with the process that will result
in their execution. In such cases, the courts are concerned with the inmate's competence and
therefore his unavailability under the first prong of Whitmore, which is not an issue in this matter.
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sufficiently significant relationship to establish "next friend" status. In Lenhard v. Wolff, 443 U.S.
1306, 1310 (1979) Rehnquist, J., as Circuit Justice, stated that "it strikes me that from a purely
technical standpoint a public defender may appear as "next friend" with as much justification as the
mother of [the inmate]." Similarly, in Morgan v. Potter, 157 U.S. 195, 198 (1895), the Supreme
Court held that the next friend brings the suit on behalf of the true party in interest and "resembles
an attorney, or a guardian ad litem, by whom a suit is brought or defended in behalf of another."
The Government concedes, as it must, that an attorney-client relationship came into being
between Ms. Newman and Padilla on May 15, 2002. "The law protects confidentiality and sanctity
of the attorney-client relationship. It is difficult to conceive of more intimate human relationships
which must be secured against undue intrusion by the State because of the role of such relationships
in safeguarding the individual freedom that is central to our constitutional scheme than attorney-
client relationships." Johnson v. City of Cincinwi, 119 F. Supp. 2d 735, 742 (S.D.Ohio, 2000)
(internal quotations omitted) The effectiveness of the attorney-client relationship is immediate.
"Once an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the
sanctity of the attorney-client relationship takes effect." Patterson v. Illinois, 487 U.S. 285, 290
(1988). The Government contends that Ms. Newman fails to satisfy the second Whitmore prong,
that the next friend has a significant relationship with the true party in interest. The government
contends that Ms. Newman's attorney-client relationship with Padilla was too brief in duration to
be considered a significant relationship. The government ignores the reason the Court requires a
"next friend" to have a significant relationship with the true party in interest which is to avoid
uninvited meddlers. More importantly, the government fails to cite to a single case that suggests that
the significance of the attorney-client relationship somehow ripens with the passage of time.
The Government also fails to cite to any authority to support its argument that the quality of
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the attorney-client relationship is something that a court can examine absent an alleged conflict
between the attorney. In the instant matter, the government seems to be suggesting that the
significance of Ms. Newman's attorney-client relationship with Padilla is a fact in dispute that would
require a hearing to resolve. Approval of the government's argument would lead to an inevitable
erosion to the attorney-client relationship. At what point in time does the attorney-client relationship
become significant? If a potential target of a grand jury seeks advice from an attorney who the target
had not worked with before is that attorney subject to subpoena or are his notes reachable by
subpoena because the attorney-client relationship is not old enough to be considered a significant
relationship? It is respectfully submitted these questions are as inappropriate as the government's
contention in this matter.
Furthermore, there can be no question that Ms. Newman had developed a substantial
relationship with Mr. Padilla. She spent in excess of twenty hours with him during the period of
her representation. She visited with him at the Metropolitan Correctional Center and during his court
visits. She appeared with him in Court and filed extensive motions on his behalf. To suggest that
her representation was anything less than substantial is simply ridiculous.
Additionally, the government's argument is based on the mistaken assumption that the
attorney-client relationship was terminated when the material witness matter was rendered moot by
the government's transfer of Padilla to the military. The responsibilities of appointed counsel do
not end with the conclusion of the matter for which counsel was assigned. Once appointed, counsel
is responsible to represent the individual at all stages including post-conviction matters, including
the filing of a writ of habeas corpus if appropriate. Once assigned by the court, the representation
of counsel continues until terminated by court order. See, United States v. McIntosh, 808 F. Supp.
760, 763 (D.C. Colorado 1992). There has been no action of this court which would permit the
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government to believe that Ms. Newman's representation of Padilla has tenninated.9
The existence of an attorney-client relationship is the basis for Ms. Newman's "next friend"
status. In almayaingra, No. 02-6827, slip op. (4th Cir. June 26, 2002) the Public Defender was
found not to be an appropriate "next friend" because "Nil seeking to be appointed as Hamdi's next
friend, the Public Defender conceded that he had no prior relationship or communication with the
detainee." Hindi at 5. The critical issue in Mogi was the complete lack of attorney client
relationship. In accord with the clear status of the law on this issue, the Fourth Circuit stated: "We
are not saying that an attorney can never possess next friend standing, or that only the closest relative
can serve as next friend. Haindi at 18. In Warren v. Cardwell, 621 F.2d 319 (9th Cir. 1980), the
Ninth Circuit permitted an attorney, who had been retained by a client's wife but who had never met
the client, to file a habeas petition as next friend. In Warren the prisoner was unavailable because
prison lock-down prevented the client from signing the petition. The court found that the attorney
who had been retained by the inmate's wife was not an uninvited meddler. ki.
The government's argument constitutes nothing more then speculation that there might be
a better "next friend" than Newman. This, however, is not only the incorrect analysis of the law but
it does not mean that Newman is not an appropriate "next friend." No court has established a
hierarchy of potential "next friends". There is no best "next friend". If the government's argument
were correct, the Court would then be required to conduct factual hearing to determine the essence
of relationships and who deserves the best "next friend" status. It would result in the Court having
to go behind relationships, for the Court to become the meddler into familial relationships and
attorney-client relationship. This of course runs counter to the intent of Whitmore.
9 This is particularly true in light of this Court's appointment of Andrew Patel to act
as co-counsel to Newman on this matter on June 12, 2002, after Padilla had been transferred to
the Naval Brig in Charleston, South Carolina.
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The Whitmore court explained that a significant relationship was required between the "next
friend" and the true party in interest to ensure that the matter would be zealously litigated and to
ensure that intruders or uninvited meddlers do not clog federal courts with litigation over pet causes.
There has been no suggestion that Ms. Newman has not prosecuted this matter vigorously or that she
is intruding on this matter for any reason other than the defense of her client's right to be free from
unlawful detention. Donna Newman has undertaken this matter as "next friend" only because it is
in her client's best interest to do so.
It is respectfully submitted that Donna Newman satisfies the conditions to serve as "next
friend" for Jose Padilla. Mr. Padilla is unavailable to sign the Petition in his own name only because
of the government's refusal to allow Ms. Newman access to her client to permit him to sign the
documents necessary to bring this action in his own name. Ms. Newman, as the attorney of record
for Jose Padilla, has instituted this action on Mr. Padilla's behalf, acting as "next friend" not as an
interloper, but in an effort to secure Mr. Padilla's release from unlawful detention.
Point II
This Court Has Jurisdiction to Issue the Writ
A. The Custodian for Habeas Purposes Need Not Be the "Jailer"
The jurisdiction of a district court to grant a writ of habeas corpus is found in 28 U.S. �
2241(a): "Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their respective jurisdictions." 28 U.S.C. 2241(a). In
AlEgagsSjark, 335 U.S. 188,68 S.Ct. 1443, 92 L.Ed. 1898 (1948), the Supreme Court, narrowly
interpreted the phrase "respective jurisdiction"to limit the court's jurisdiction to the territorial
boundaries of where the petitioner was located. The Court reasoned that requiring the petition to be
brought within the district in which the petitioner was housed, avoided transporting prisoners
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distances to other districts. Such transportation was both costly, opened opportunity for escape, and
placed a heavy administrative burden upon the receiving state. J. at 191. Congress in response to
Ahrens jurisdictional limitations enacted � 2243 (d) and � 2255 which shifted the focus in post-
conviction application from the petitioner's location to the district where the sentence was handed
down. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 497 (1973). Additionally,
Congress amended the habeas statute to eliminate the need for the transportation of the petitioner
where a factual hearing was not necessary for the determination. SsIg., 28 U.S.C. �� 2243 & 2255.
Subsequently, the Supreme Court, in limka, recognizing that the legislative amendments
to the habeas statute essentially abrogated the basic premise upon which Ahrens was decided,
clarified Ahrens further and overruled the basic premise upon whichAhrens was decided. 410 U.S.
at 497. The Braden Court shifted the jurisdictional inquiry from the geographical location of the
Petitioner to � 2242's phrase: "shall be directed to the person having custody of the person
detained." The Supreme Court held that the jurisdiction of a district court considering a habeas
corpus petition requires only that the court issuing the writ have jurisdiction over the custodian of
the prisoner. hi. at 500. The decision's underpinning were traditional principles of venue and
consideration of the most convenient forum. Id. 410 U.S. at 497, n.13, 499-500; see also, ex rel.Sero
v Preiser, 506 F.2d 1115,1128(2d Cir. 1974). Of significance, theOrad,en Court denounced slavish
application of the /Mims rule and advocated a more flexible application in accord with traditional
principles of venue. Braden, 410 U.S. at 499.
Ignoring the clear import of Braden and its progeny, the government insists upon a
formalistic approach to the jurisdictional inquiry. Their argument elevates a general rule into a per
se jurisdictional requirement, contrary to well-settled law. see. e.g., Fisel v. Sec of the Army,
477 F.2d 1251, 1254 (D.C.Cir. 1973)(Where a petitioner "may or may not bring habeas actions is
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better determined by analyzing the policies for and against allowing an action in a particular
jurisdiction rather than by blind incantation of words with implied magical properties, such as
'immediate custodian".); Nwanlcwo v. Reno, 828 F.Supp. 171, 174 (E.D.N.Y. 1993) ("while the
general rule may be sound as a matter of policy, the language of the habeas corpus statute does not
compel rigid adherence to it in every case."). The Second Circuit in this context stated that "[t]he
general rule" treating the immediate custodian as the only proper respondent and that petitioner's
situs as the sole correct venue "can not and should not be followed with blind rigid adherence but
must bend when necessary to accommodate the commons sense administration of justice".
Henderson vJnunigmtion and Naturalization Service, 157 F.3d 106, 122-23(2d. Cir. 1998)(citations
omitted), certified question declined by Yesil V. Reno, 92 N.Y.2d 455 (1998), opinion after certified
question declined, 175 F.3d 287 (2d Cir.), cert.denied sub nom., Reno v. Navas, 526 U.S. 1004
(1999). The government's argument, however, precludes flexibility and amounts to nothing more
than a throw-back to Ahrens since the petitioner and the jailer will always be located at the same
place. Above all, it ignores the current state of the law as it relates to this Court's authority to decide
this petition.
For example, contrary to the government's position "[n]o where does the statute speak of
an 'immediate custodian' or intimate that an action must necessarily be instituted in the location
of such an `immediate custodian." Eisd, 477 F.2d at 1258. (emphasis added). Rather, the identity
and the location of a petitioner's custodian are "flexible concepts". Wang v. Reno, 862 F.Supp. 801,
812 (E.D.N.Y. 1994). Notably, "the statute neither defines 'custody' nor does it define "who the
person having 'custody' will be." NWalljEWO v. Reno, 828 F.Supp. 171, 173 (E.D.N.Y. 1993). There
has never existed ... an absolute requirement that a habeas action be brought in the location of the
"immediate custodian." Eise1,477 F.2d at 1261.(emphasis added). "Th[e] search for the proper
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"custodian" is not merely unproductive, it is not required by law. lg. The Second Circuit observed
that "[h]istorically, the question of who is 'the custodian' and therefore the appropriate respondent
in a habeas suit, depends primarily on who has power over the petitioner and ...on the convenience
of the parties and the court." Henderson, 157 F.3d at 122(citations omitted). Accordingly, who the
"custodian" is for the purposes of 28 USC � 2242 is based upon the facts and circumstances of the
case with due consideration of the traditional principle of venue. See, &gm, 410 U.S. at 499-500;
Ex parte Endo, 323 U.S. 283 (1944).
Even before Braden, the Supreme Court made it clear that for habeas jurisdictional purposes
it not necessary for the respondent to be petitioner's "immediate custodian" In Ex parte Endo, the
Supreme Court found jurisdiction to lie in California for a petition filed in California by petitioner,
an American citizen of Japanese ancestry, detained in Utah in an internment camp by the War
Relocation Authority. kl. at 304. Prior to her forced "relocation", petitioner filed her habeas petition
in the Northen District of California where she was originally detained. at 305. The Court held
that either the Acting Secretary of Interior or the assistant director who had offices in San Francisco
were proper respondent because they were responsible for petitioner's detention and had the power
to release her. a at 304-305; see also, Kinnell V. Warner, 356 F. Supp. 779, 782 (D. Hawaii 1973)
("Anyone in the 'chain of command' with control over petitioner's whereabouts is that petitioner's
proper custodian for habeas purposes.").
The Supreme Court's flexible approach to custodian and the appropriate habeas respondent
is also seen in Strait v. Laird, 406 U.S. 341 (1972). In Strait, an army reservist applied for a
conscientious objector discharge by filing his papers in California where he lived and where his
application was filed and hearings held. Id. at 344. His military records were kept at Fort Benjamin
Harrison, Indiana where his nominal commanding officer was located. The Supreme Court found
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jurisdiction to lie in California where petitioner filed his habeas petition as opposed to Indiana where
his "immediate custodian" was located. In reaching this ruling the Court recognized that far greater
contacts to the issue presented existed in California than in Indiana. Also, the Strait Court stressed
that "the concepts of 'custody' and 'custodian' are sufficiently broad to allow us to say that the
commanding officer in Indiana, operating through officers in California in processing petitioner's
claim is in California for the limited purposes of habeas corpus jurisdiction." N. at 346.
In Ex orte Hayes, 414 U.S. 1327 (1973), the Supreme Court was presented with a habeas
petition where both the petitioner, an army private, and his immediate commanding officer were
stationed in Germany. The Hayes Court permitted the habeas action to proceed in the District of
Columbia, finding the jurisdictional requirement was met by the presence in that jurisdiction of
others in the chain of command. Thus, in view of End,o, Strait, Jives, and Braden, the government's
claim that the custodian must always be the petitioner's "immediate custodian" and that the petition
must be heard only within the territorial jurisdiction of the custodian's location is clearly wrong and
inapposite to Supreme Court precedent.
B. President Bush and Secretary Rumsfeld e Proper Respondents
President Bush and Secretary Rumsfeld are proper respondents and the government's
argument to the contrary suffers from a distortion and over-simplification of the law.
1. This Petition is Not an Intrusion on Presidential Authority
The government's claim that President Bush can never be a Respondent in a habeas petition
is without merit. agg, Gov't Br. at 14. The government cites to Franklin v. Massachusetts, 505 U.S.
788 (1992) for the proposition that courts have no jurisdiction to enjoin a President in the
performance of his official duties. While no one contests that point of law, it is irrelevant to the
issue now before this Court. In Franklin, the Supreme Court reversed the district court which had
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entered an injunction directing the President to recalculate the number of representatives the State
of Massachusetts received after the 1990 census. Similarly, in Mississippi v Johnson. 71 U.S. 475
(1866), the Supreme Court held that the Court had no jurisdiction to enjoin the President from
executing the Reconstruction Acts.
Nothing in the Petition seeks to enjoin the President from doing anything Congress has
authorized. The only purpose of the writ is to question the constitutionally of the President's
actions. As the Court found in Franklin, "the President's actions may still be reviewed for
constitutionality." a at 801.10 hold otherwise would be to recognize an imperial presidency that
our constitution was designed to prevent.
2. The Cases Upon Which the Government Relies are Unavailing
The government argues the instant petition is analogous to claims made by prisoners who
challenge the determinations of the Parole Board. Gov't Br. at 12, Riling. Billiteri v U.S. Board of
Parole ,541 F.2d 938, 948 (2d Cir. 1976). In Mitzi, the petitioner was challenging the Board's
calculation of his date of parole while he was still serving his sentence. He was therefore not under
the custody of the Board, but rather was under the custody of the warden of the facility where he was
serving his sentence. Padilla's situation is distinguishable. Petitioner here is challenging the legality
of his detention and his situtation is controlled by Respondent's Bush and Rumsfeld who placed him
under detention. As such, his situation is analogous to a parolee who is incarcerated as a result of a
parole violation and brings a writ challenging the legality of that detention. The Billiteri Court noted
in that situation, the proper respondent would be the Board of Parole and not the warden. Id. at 948.,
Lit gal, Benet v. Soto, 850 F.2d 161, 163 (3d Cir. 1988)(same).
Monk v. Secretary of the Navy, 793 F.2d 364 (D.C. Cir. 1986) does not lend support for the
government's position because it does not concern the jurisdictional question at issue here. 512,
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Gov't Br. at 13. Petitioner Monk, incarcerated in Kansas after being court-martialed and convicted,
brought a civil action seeking monetary relief and declaratory relief in the District of Columbia,
naming as respondent the Secretary of the Navy. The Court re-characterized the action as writ of
habeas corpus and dismissed the writ finding the District of Columbia lacked jurisdiction to issue
the writ. Id. at 369-70. The government makes much of the Court's statement that for purposes of
the federal habeas corpus statute, jurisdiction lie in the district in which the immediate and not the
ultimate custodian is located. Id While that language, in light of Supreme Court precedent is
undoubtedly over-broad, nonetheless, in the context of the facts of Monk the holding accords with
Braden and its progeny. Simply, in terms of the traditional consideration of venue, lacking in
Monk's petition was a nexus between his claims, the Secretary of the Navy, and the District of
Columbia. See, at 369. In this respect, Monk is similar to general prison cases who name as a
respondent the Attorney General. age, ez, 5Andsra_m_jkago, 148 F.2d 19 (D.C.Cir. 1945).
Padilla's situation is entirely different. As discussed below, here exists a strong nexus between the
actions of the Respondents, the Southern District of New York, and the constitutional violations
recited in Padilla's petition.
To the extent, the government infers that the Secretary of the Navy or similarly ranking
executive can never be a proper respondent, both common sense and case law prove them wrong.
Lg.,Ex Parte Hayes, 414 U.S. at 1327 (Jurisdiction may be based upon the location of the
petitioner's commanding officer or others within the commanding officer's chain of command);
Schlanger v. Seamans, 401 U.S.487, 489-91(1971); Dillon v. Chandler, 452 F.2d 1081,1082-83 (9d1
Cir. 1971). It also can not escape notice that Court's have considered the Secretaries of Armed
Services and the Secretary of Defense as proper Respondent when there exists contacts to the
jurisdiction relative to the action. See, e.g. Strait v. Laird, 406 U.S. 341; Middendorf. Sec'y of the
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Navy v. Henry, 425 U.S. 25(1976); Ex Parte Hayes, 414 U.S. at 1327;Arlen v. Laird, 451 F.2d 684
(2d Cir. 1971); Cittney_Ligizi, 462 F.2d 606 (13` Cir. 1972); Applebaum v Seaman, 365 F.Supp.
1177. Moreover, when it has suited the government they have argued in favor of having a member
of the executive branch named as a respondents. See, Parisi v. Davidson. 396 U.S. 1233, 1234,90
S.Ct. 497, 24 L.Ed.2d 482 (1969). Thus, the presence of the "immediate custodian" within the
territorial jurisdiction of the court is a not igle am, Gov't Br. at 14, n.3.
3. Respondent's Bush and Rumsfeld Are Padilla's Custodian and Played a
Pervasive Role in His Arrest and the Condition of His Incarceration
Respondents Bush and Rumsfeld played a more direct role in Padilla's custody then the
Attorney General does in the immigration detainee cases, where the petitioner and his jailer are not
in the territorial jurisdiction of the district court and the Attorney General is named as a respondent.
Most of the courts in this district who have considered the jurisdictional issue presented in those
cases, have concluded that the Attorney General is a proper respondent and that the Attorney General
has sufficient contacts within this district for jurisdiction to lie here. 50, es.,,Onsluemani v.
Aschroft, 2001 U.S.Dist.LEXIS 12163 (E.D.N.Y. Aug. 16, 2001)(Attomey General is proper
respondent and this court has jurisdiction to hear petition); Halley v. Reno, 2001 WL 184571 at *1
(E.D.N.Y. Feb. 21, 2001)(same); Arias-Agramonte v. Commissioner of INS, 2000 U.S. Dist. LEXIS
10724, 2000 WL 1059678 (S.D.N.Y. Nov. 2, 2000)(same); Acaide-Zelaya v. McElroy, 2000
U.S.Dist. LEXIS 15714 (S.D.N.Y. Oct. 27, 2000Xsame); Pena-Rosario v. Reno, 83 F.Supp.2d 349,
361 (E.D.N.Y. 2000Xsame); p ottinger v. Reno, 51 F.Supp.2d 349, 356 (E.D.N.Y. 1999); aff'd 242
F.3d 367 (2d Cir. 2000)(same); Mqiica v. Reno, 970 F.Supp. 130, 166 (E.D.N.Y.1997)(same);
NwanIcwo, 828 F.Supp. at 174(same); Barton v. Ashcroft, 152 F.Supp.2d 235(D.Conn. 2001)(same);
Agg Alm ausgagiyam_Qlsen. 194 F.Supp.2d 368, 374 (D.N.J. 2002)(same); Roman v.
Ashcroft, 162 F.Supp. 2d 755 (N.D.Ohio 2001same);�e1vettv. Ashcroft. 2002 U.S.Dist.
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LEXIS 3168 *4 (S.D.N.Y. Feb. 27, 2002)(Proper respondent is either INS Director or warden where
alien is detained); Martinez-Ikvmer, 2002 U.S.Dist LEXIS 5611 *4(S.D.N.Y. Feb. 14, 2002)(Proper
respondent is the district director responsible for the detention facility where the petitioner is held);
Wang v. Reno, 862 F.Supp. 801 (E.D.N.Y. 1994)(same); Vasquez v. Reno, 233 F.3d 688 (1' Cir.
2000), cert. denied, 70 U.S.L.W. 3233, 122 S.Ct. 43, 151 L.Ed.2d 15 (2001)'�(Warden is the
appropriate respondent) " These courts reasoned the Attorney General plays a pervasive and
extensive role in immigration detention and removal decisions. leg gag, ,Arias-Agramonte v.
Commissioner o INS, 2000 U.S. Dist. LEXIS 10724 *, 2000 WL 1059678 (S.D.N.Y. Nov. 2,
2000); Mojica v. Reno, 970 F.Supp. 130, 166 (E.D.N.Y.1997); Nwankwo v. Reno, 828 F.Supp.
1717, 176 (E.D.N.Y. 1993); igs also, lienderson, 157 F.3d at 126.
The Second Circuit, while not deciding the issue, noted the Attorney General may be a
proper respondent in Immigration detainee cases in light of the unique role the Attorney General
plays in immigration matters:!) The Attorney General makes the ultimate determination of detention
to The government relies heavily on Vasquez Gov't Br. at 11, 13, 14 n.3. Its
reliance on Vasquez is misplaced. The Vasquez Court's espoused a per se rule for INS detainee
cases-i.e. the proper respondent must always be the warden of the facility who is responsible for
the detainee's day-to-day care since it is that warden who can deliver the "body". Id. at 693. As
discussed above, this is contrary to established law which recognized the custodian is flexible
and not static term. 512, e.g. Strait, 406 U.S. at 346, 92 S.Ct. at 1693; )Braden, 410 U.S. at 499-
500. Moreover, the local warden typically is simply under an INS contract and has no ability to
produce the "body." In light of the weakness of the Vasquez opinion, it is not surprising that it
has come under sharp attack. See, e.g. Iv., Roman, 162 F.Supp. 2d at 761 (The conclusions of
Vasquez can eviscerate the Writ and suggest the Court has no power to do anything to grant
relief, contrary to well established precedent.); Chavez-Rivas, 194 F.Supp.2d at 374 (Prefix "the"
does not always refer to one and only one person, e.g. "the custodian parent"). Finally, the
Vasquez Court concedes, its analysis is contrary to Henderson. Id. at 694, n4. Accordingly,
Vasquez is not controlling on this Court and it is of little assistance in determining the proper
respondent in this case.
Although these courts found that the Attorney General was not a proper
respondent, there is no uniformity in these decision on who is the proper respondent.
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and removal; 2) Congress has designated the Attorney General as the legal custodian of the
petitioner; 3) The Attorney General is named as proper respondent in most court actions reviewing
the legality of removal; 4) It is within the Attorney General's power to direct her subordinates to
carry out an order to produce or release the alien and has the power to detain them indefinitely.
Henderson, 157 F.3d at 126.(citations omitted); see also, Nwankwo, 828 F.Supp. at 176; C vas
v. Rivas, 194 F. Supp.2d 368,374 (D. N.J. 2002)(citing with approval, ,Henderson, finurn). Notably,
most of the courts which have rejected the Attorney General as respondent, nonetheless, recognize
that in certain circumstances, the Attorney General would be would be a proper respondent. See. e.g.,
Vasquez, 233 F.3d at 696; Wing 862 F.Supp. at 812.
Comparatively, President Bush and Secretary Rumsfeld's involvement in this case is far
greater than that of the Attorney General in an immigration detention/removal case. Here
Respondents Bush and Rumsfeld acted upon Padilla, specifically and individually. Without
Constitutional or statutory authority, President Bush and Secretary Rumsfeld took complete charge
of Padilla's arrest and detention. They ordered Padilla's arrest, arranged for and directed the transfer
of custody from the Department of Justice to the Department of Defense, directed that his attorney
be denied all access to him(including written correspondence). When Attorney General John
Aschroft announced on June 11,2002, Padilla's transfer to the Department of Defense, he made it
clear that the arrest of Padilla was a joint effort by the Department of Justice, the Department of
Defense and other senior officials. Respondent Bush and Rumsfeld role has not been as mere
administrators or figure head executives. These Respondents' involvement have been hands-on and
continues as such. Thus, it is Respondent Bush and Rumsfeld who alone can order any change to
Padilla's condition of confinement, permit counsel access to Padilla, or order his release.
Respondent Bush and Secretary Rumsfeld's involvement, in short, has effected every aspect of
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Padilla' s current circumstances, and every aspect of the constitutional violations claimed in the
instant petition. The circumstances here are unique, extraordinary and like no other. The blind
application of any general rule of geographic jurisdiction is simply inappropriate.
C. Commander Marr Can Not Deliver the "Body"
The government argues that Commander Marr is the only proper Respondent because she
alone has the power and ability to release Padilla. Gov't Br. at 15-16 The government states:
[Mau] "is the one who can free the prisoner should the writ be granted". Marr is not the one who
can release Padilla and thus, she is not the only proper respondent. See, ex re. Goodman v. Roberts,
152 F .2d 841,842 (2d Cir. 1946)("A writ of habeas corpus must be directed to some person who has
the power to produce before the court the body of the party detained (emphasis added)(citations
omitted)). In reality President Bush and Secretary Rumsfeld can "produce the body" or permit
counsel to see Padilla.(aw, discussion,supra)
It must be recognized that Marr is not Padilla's commander. Padilla is a civilian who has not
been charged with a violation of military law. Commander Marr is not holding Padilla pursuant to
a Military Court order or for trial. Padilla is not contesting his Commander's decision or his status
within the military; he is not in the military. Rather, Padilla, is a United States citizen who is
detained by the military pursuant to an Order from the President, as Commander-in-Chief and
implemented by the Secretary of the Defense.
Commander Marr receives her orders through the chain of command. With respect to
Padilla, Commander Marr receives her direction from her superiors who are receiving their orders
from Secretary Rtunsfeld and President Bush. Moreover, even in the typical military arrest, which
of course this case is not, Marr would lack the authority and power to release Padilla.
Insight into the limitations of Commander Marr's authority can be found in the Department
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of Defense("DOD") policy statements, the Uniform Code of Military Justice ("UCMJ") found at 10
U.S.C. � 801, et seq. and the Rules for Court-Martial ("RCM") which are contained within the
Manuel for Courts-Martial ("MCM")12. DOD Directive � 2310.1, entitled, DOD Program for
Enemy Prisoners of War Enemy Prisoners of War and other Detainees, states at paragraph 3.3:
3.3 Captured or detained personnel shall be accorded an appropriate
legal status under international law. Person captured or detained may
be transferred to or from the care, custody, and control, of the U.S.
Military Services only on approval of the Assistant Secretary of
Defense for International Security Affairs (ASD(ISA)) and as
authorized by the Geneva Conventions Relative to the Treatment of
Prisoners of War and for the Protection of Civilian Person in Time of
War.
While this Directive is not directly on point", since Padilla is a civilian, a United States
citizen, and not military "personnel", nonetheless, it sets forth military policy which advises that
Commander Marr is without the authority to alter Padilla's current status, i.e. to permit counsel to
visit, to release him or even produce him in court without direct orders from Secretary Rumsfeld or
President Bush. Further explanation of Marr's limited authority over Padilla is found in RCM 304.
That RCM provides in pertinent part:
Rule 304 Pretrial Restraint
(a) Types of pretrial restraint. Pretrial restraint is moral or physical
restraint on a person's liberty which is imposed before and during
disposition of offenses. Pretrial restraint may consist of conditions on
liberty, restriction in lieu of arrest, arrest, or confinement.
...
(4) Confinement. Pretrial confinement is physical
restraint, imposed by order of competent authority,
depriving a person of freedom pending disposition of
12 The MCM is an Executive Order, promulgated pursuant to 10 U.S.C. � 836 and
the RCM are contained within the MCM and provide the procedural guidelines for the UCMJ.
13 In fact there is nothing under Military Law or Civilian Law which provides for the
action taken by the President and thus, nothing which provides for the procedures military
personnel are to follow.
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offenses. See. RCM 305'4.
(b) Who may order pretrial restraint
(1) Of civilians and officers. Only a commanding
officer to whose authority the civilian or officer is
subject may order pretrial restraint of that civilian or
officer.
(g) Release. Except as otherwise provided in RCM 305, a person
may be released from pretrial restraint by a person authorized to
impose it. Pretrial restraint shall terminate when a sentence is
adjudged, the accused is acquitted of all charges, or all charges are
dismissed.
Marr lacks the authority to direct Padilla's release because only a person who has the
authority to order the restraint originally, here Respondent Buse, can direct the release of the
prisoner. N. subsections (b) & (a). Further, if she were to release Padilla in violation of orders given
by her superiors in the chain of command, she would herself be subject to court-martial. 10 U.S. C.
14
Rule 305 concerns pretrial confinement when the person confined is subject to trial
by court- martial. It thus, has even less application here where Padilla is not being charged with a
crime and is being held only for interrogation purposes.
Rule 305 Pretrial Confinement
(a) In general. Pretrial confinement is physical restraint, imposed by order of
competent authority, depriving a person of freedom pending disposition of charges.
(b) Who may be confined. Any person who is subject to trial by court-martial may
be confmed if the requirement of this rule are met.
(c) Who may order confinement. See RCM 304(b).
(g) Who may direct release from confinement. Any commander of a prisoner, an
officer appointed under regulations of the Secretary concerned to conduct the review
under subsection (i) and/or (j) of this rule, or once charges have been referred, a
military judge detailed to the court-martial to which the charges against the accused
have been referred, any direct release from pretrial confinement. For purposes of
this subsection, "any commander" includes the immediate or higher commander of
the prisoner and the commander of the installation on which the confinement facility
is located.
15 This is not meant to be read as a concession that President Bush had the authority
to order Padilla's arrest and detention. We contest the legality of President Bush and all the
Respondent's actions on the grounds that they were in violation of Padilla's constitutional rights.
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� 892. Article 92 & Article 9616. Marr's authority, therefore, is circumspect, at best and here is
almost non-existent. Thus, her role vis-a-via Padilla is far less than even the local warden of a
facility contacted to hold INS detainee. There the warden can afford the detainee those rights
accorded the remainder of his prison population, counsel visits, telephone calls, family visits, etc.
Commander Marr lacks the authority to do even this. Although, Commander Marr may hold the
key to Padilla's prison cell, President Bush and Secretary Rtunsfeld hold the key to the main gate.
Commander's Maff's key is useless for our purposes. Thus, to say Commander Marr is Padilla's
only custodian upon which jurisdiction must be based is to "exalt fiction over reality". 5statitt
406 U.S. at 344.
D. All Respondents Including Commander Marr Are Amenable to Process Within the
Southern District of New York
The government argues that the physical absence of the Respondents from this district
defeats Padilla's claim that this court has jurisdiction over the habeas petition. Gov't Br. at 16-20.
The law reflects that the government's position is untenable. The physical absence of the
16
Article 92-Failure to obey order or regulation
Any person subject to this chapter who -
(1) violates or fails to obey any lawful general order or regulation;
(2) having knowledge of any other lawful order issued by a
member of the armed forces, which it is his duty to obey, fails to
obey the order; or
(3) is derelict in the performance of his duties; shall be punished as
a court-martial may direct
Article 96. Releasing prisoner without proper authority
Any person subject to this chapter who without proper authority,
releases any prisoner committed to his charge, or who through
neglect or design suffers any such prisoner to escape, shall be
punished as a court-martial may direct, whether or not the prisoner
was committed in strict compliance with law.
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Respondents does not defeat this court's jurisdiction over the Respondents. Rather, jurisdiction is
established through their own activities and the activities of those within the chain of command
within the district relative to Padilla.
1. Jurisdicdon Is Co-extensive with Service of Process
In Bizim, the Supreme Court held:
read literally, the language of � 2241(a) requires nothing more than
that the court issuing the writ have jurisdiction over the custodian. So
long as the custodian can be reached by service of process, the court
can issue a writ 'within its jurisdiction' requiring that the prisoner be
brought before the court for a hearing on his claim . . . even if the
prisoner himself is confined outside the court's territorial jurisdiction.
14. 410 U.S. at 497. (Emphasis added).
Despite the express language in Braden that a custodian who can be reached by service of
process is within the court jurisdiction, the government argues, the Supreme Court could not have
intended to expand the meaning of "custodian" beyond the territorial jurisdiction of the district court.
Gov't Br. at 18, 14,n.3. On page 18 of their brief, the government states:
Braden' s reference to service, however, cannot be read to have altered
the rule of 59,1gan2el(requiring territorial jurisdiction over the
custodian) � and to tacitly allow state long-arm statutes to trump the
territorial limitations in federal habeas statute.
The above is just one more example of the government's misstatement of the law.
First, Schlanger does not stand for the proposition that the custodian must be within the
court's territorial jurisdiction for a habeas to issue. The Supreme Court made this clear in ,Hayes.
414 U.S. at 1329; gm aim, Tx Parte Endo,323 U.S. at 306. There the Court explained that in
Schlanser, "we found that the District Court did not have jurisdiction over the habeas application
of an Air Force enlisted man because neither his commanding officer nor anyone 'in his chain of
command' was a resident of the district." Ld.(emphasis added). Therefore, Schlanger only held that
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a custodian, or one in the chain of command, must be within the reach of the court's jurisdiction. a
red,AppgjimmLy,_Samgn, 365 F.Supp. 1177, 1179 (S.D.N.Y. 1973)(emphasis added)(citing,
Schlansor, 401 U.S. 487, 91 S.Ct. 995). Accordingly, the presence of the custodian or one in the
custodian's chain of command within the reach of the court's service of process establishes the
court's jurisdiction for the issuance of the writ. kl.at 1180, nl(citing, Dmigan_ylaiirsi, 308 F.Supp.
449,453 (D.Md. 1969)).
Second, there can be no dispute as to Braden' s meaning. The Second Circuit has stated that
habeas jurisdiction is co-extensive with scope of service of process. Preiser, 506 F.2d at 1128;
Henderson, 157 F.3d at 123( INS detainee seeking habeas relief from INS detention could obtain
jurisdiction in New York over an out-of-state custodian through use of New York's long arm
statute); see also, Wang v. Reno, 862 F.Supp. at 812 ("Given the clear language in Endo
concerning 'service of process,' it appears that the jurisdiction requirement of � 2241 is read to refer
to personal jurisdiction over the custodian, rather than the geographical boundaries of the district
court's jurisdiction."); Chavez-Rivas, 194 F.Supp.2d at *7 ("The Braden court, however, explicitly
refused to promulgate any hard and fast rule limiting the jurisdictional reach of District Courts to the
place of the petitioner's confinement"); Nwankws, 828 F.Supp. at 174; Belvett, 2002 U.S. Dist.
LEXIS 3168 *4.
Third, the )3raden court did overrule Ahrens. Patterson v. McLean Credit Union, 485 U.S.
617 (1988).(gitng, Braden and its overruling of ,Ahrens as an example of a case in which the
Supreme Court has explicitly overruled statutory precedents).
1. This Court Has In Personam Jurisdiction Over AU the Respondents
This Court has personal jurisdiction over all Respondents. Personal jurisdiction of a federal
court over a non-resident defendant is governed by the law of the state in which the court sits. Fed.
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R. Civ. P. 4(e)(1); Hendassois 157 F.3d at 123(citation and quotation omitted). New York law
establishes that personal jurisdiction exists over non-resident who, in person or through an agent,
"transacts any business within the state". N.Y.C.P.L.R. � 302(a)(1)(McKinney 2002). Proof of one
transaction in New York is sufficient to invoke jurisdiction, even though the defendant never enters
New York, so long as the defendants activities are purposeful and there is a substantial relationship
or an articulable nexus between the transaction or activities which occurred in New York and the
claim asserted. Houlaggn, 157 F.3d at 157 (citations omitted); Parker v. Bernet Galleries v.
Franklin, 26 N.Y.2d 13 ( 1970); Reiner & Co v. Schwartz, 41 N.Y.2d 648 (1977).
The Supreme Court has found jurisdiction to lie where the Secretary was present or through
the presence of others in the Secretary's chain of command Strait v. Laird, 406 U.S. 341, 346, 92
S.Ct. 1693, 1696, 32 L.Ed.2d 141 (1972); Ex Parte Mitsuye Endo, 323 U.S. 283, 304 (1944)); In
cases involving habeas petitions by military personnel, courts find jurisdiction based upon the
location of the petitioner's commanding officer or others within the commanding officer's chain of
command. Ex Parte Hayes, 414 U.S. at 1327; Schlanger, 401 U.S. at 489-91; pee , Dillon v.
Chandler, 452 F.2d 1081, 1082-83 (9th Cir. 1971); Chavez-Rivas, 194 F.Supp.2d at 374; Nwankwo
v. Reno, 828 F.Supp. at 175.
President Bush, Secretary Rumsfeld, and Commander Marr in their official capacity directly
and through others in the chain of command and/or those acting as their agents came into the
Southern District of New York for the purpose of arresting Padilla and taking him into their custody.
The transfer of Padilla' s custody from the Department of Justice to the Department of Defense was
accomplished in the Southern District of New York. Prior to the actual transfer, it can be assumed
that these Respondents, their agents and/or, members of their respective staffs, communicated both
in person and by telephone or other means with members of the United States Attorney's Office for
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the Southern District of New York. They also had communications with member of the staff at the
Metropolitan Correction Center in New York City.
Further, the United States Attorney's Office in this district acted as an agent of both
Respondents Bush and Rumsfeld. This is evident from the degree of involvement the Department
of Justice had in this matter from its inception and continuing to the present Padilla was initially
arrested on a grand jury material witness warrant and detained in this district under the custody of
the Department of Justice. Just before this Court could rule on the legality of Padilla's detention as
a grand jury material witness, Secretary Rumsfeld and Attorney General Ashcroft, with other senior
officials consulted with each other with respect to Padilla. Thereafter, they advised the President that
the Department of Defense should take over Padilla's custody. The President acted upon this advise
and ordered Padilla's transfer to the military. The United States Attorney's office in this district
withdrew its Grand Jury warrant to enable the transfer of Padilla's custody to the Department of
Defense.
The United States Attorney's Office continues to work on behalf of President Bush,
Commander-in-Chief, the Department of Defense and Secretary Rumsfeld. They have together with
the Solicitor General's Office brought the within motion to dismiss. Matters concerning Padilla's
detention, including counsel's right to see petitioner, Padilla's ability to receive counsel's letter,
counsel's request for a copy of the President's Order directing Padilla's arrest were, per the
directions ofthe United States Attorney's office, addressed to their attention. Interrogation of Padilla
is being conducted, inter dia, by members of the Federal Bureau of Investigation ("FBI") which falls
within the purview of the Department of Justice. As recently as Wednesday, July 1, 2002, FBI
agents visited Padilla's mother and upon their invitation, picked-up a letter from her to her son,
which they stated they would deliver to her son. Thus, even under a theory of agency law,
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Respondents Bush and Rumsfeld have had sufficient contact with this district for the respondent to
be mendable to process of this Court. 50, Parker v. Bernet Galleries v. Fmnkliq, 26 N.Y.2d 13.
In sum, although only one contact with the Southern District of New York would be
sufficient for this Court to have in personam jurisdiction over all Respondents, in this instance, the
Respondents all had extensive contact with the Southern District either directly or through someone
within the chain of command or their agents to enable this Court to have in personam jurisdiction
over all Respondents.
E. The Southern District of New York Is the Proper Venue
Venue is proper in the United States District Court for the Southern District of New York
since this Court has unique familiarity with the facts and circumstances of this case and its
resolution does not require Padilla's presence. Traditional venue considerations apply to habeas
cases. Braden. 410 U.S. at 493-94. Those considerations include: (1) where the material events
occurred; (2) where records and witnesses pertinent to the claim are likely to be found; (3) the
convenience of the forum for respondent and petitioner; and (4) the familiarity of the court with the
applicable laws.
The complained of events, Padilla's illegal arrest on order from President Bush, occurred
within this district. His illegal custody by Department of Defense began in this district The
Petitioner was originally brought into this district pursuant to a grand jury material witness warrant
signed by this Honorable Court, applied for by the United States Attorney's Office for the Southern
District of New York.
During the time Padilla was held in this district, this court had an opportunity to hear, and
review several motions brought on Padilla's behalf. Those motions sought relief similar to the instant
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petition. The events which occurred in this district are a significant part of the background of this
case which simply can not be divorced from the current petition. Padilla's counsel is in this district.
Her familiarity with these events, and Padilla is based on her representation of Padilla in this district.
Accordingly, application of the traditional venue consideration compel a determination that the
Southern District of New York is the appropriate venue for the resolution of this case.
F. The Gave ment Has Engaged in Impermissible Forum Shoquing
It is impossible not to notice that currently within the Fourth Circuit's jurisdiction are the
three prominent "terror" cases, all brought to the district courts, within that Circuit, by the
govemment-Zacarias Moussaoui (trial pending in district court in Virginia); John Phillip Walker
Lindh" (trial pending in district court in Virginia); Yaser Esam Hamdi(habeas application pending
in district court in Virginia). None of the complained of crimes alleged in those cases are alleged
to have occurred within the territorial jurisdiction of the district courts in which the actions are
pending.
Similarly, the offenses which the President and Secretary Rumsfeld alleged Padilla
participated, did not occur in South Carolina. Padilla did not enter South Carolina voluntarily. He
has not chosen that jurisdiction. Padilla's presence in South Carolina is the result of the orders of
Respondents Bush and Rumsfeld. There is no nexus between the jurisdiction of South Carolina and
the instant petition. In short, the government has maneuvered Padilla's location to be in the Fourth
Circuit, as they apparently maneuvered the other cases.
Adding insult to injury, the government now moves the Court to dismiss the within petition
on the grounds that the petition must be brought in South Carolina, the location orchestrated by the
17 David Kelley, an Assistant United States Attorney from the Southern District of
New York, has been assigned as part of the prosecution team in Lindh matter.
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government This is nothing more than improper forum shopping, on which, they now seek the
Court's imprimatur. The Court must not permit the government's manipulation of this Court's
jurisdiction. la, Algagsdalms, 2000 IJ.S.DistLEXIS *14( Unless INS petitioners are permitted
to name the Attorney General as respondent, "there will be almost no check in the government's
ability to forum shop. It is, after all, the government that directs where an alien is detained.").
G. Court had Jurisdiction Over this Matter and its Jurisdiction Continues
There is no question that had Padilla been moved after the filing of the instant habeas
petition, this Court would have jurisdiction. Jones v. Quurigham, 371 U.S. 236 (1963); Ex parte
Endo, 323 U.S. 283 (1944); Ledesma-Valdes v. Sava, 604 F.Supp. 675, 679 (S.D.N.Y. 1985). The
within petition was filed less than 48 hours after Padilla was moved. The petition could not be filed
earlier since counsel was not advised in advance of the government's intention to move Padilla.
Moreover, this Court having had original jurisdiction over the matter should have the priority
over any subsequent lawsuit. Qjeda Rios v. Wigen, 863 F.2d 196,202 (2d Cir. 1988)(citing, Factors
Etc. Inc. v. Pro Arts. Inc., 579 F.2d 215,218 (2d Cir. 1978), cert. denied, 440 U.S. 908,59 L.Ed.2d
455, 99 S.Ct. 1215 (1979)). The Second Circuit noted in qeda Rios: "If the current location of
Ojeda Rijos' confinement had been selected by prosecuting officials, his entitlement to challenge
here would be considerably stronger." j. at 202. Here, that is exactly what the Respondents did-
they chose the location of Padilla's confinement. Moreover, as stated son, this Petition contests
the legality of Padilla's detention, the very issue albeit on different grounds addressed in motions
filed in this district. To deny this court jurisdiction would encourage the government to continue in
their machinations. It is respectfully submitted that this court should retain the jurisdiction which it
had originally.
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Conclusion
Justice Fortas writing for the Supreme Court in Jturis v. Nelson, 394 U.S. 286,290-91(1969)
stated:
The scope and flexibility of the writ � its capacity to reach all
manner of illegal detention � its ability to cut through bathers of
form and procedural mazes � have always been emphasized and
jealously guarded by courts and lawmakers. The very nature of the
writ demands that it be administered with the initiative and flexibility
essential to insure that miscarriages of justice within its reach are
surfaced and corrected.
It is respectfully submitted that it is clear that Donna R. Newman satisfies the requirements
to act as "next friend" and that this Court has jurisdiction over this writ of habeas corpus. We
respectfully request that the government's motion to dismiss the writ be denied and that the writ be
issued.
Dated: July 11, 2002
New York New York
Respectfully submitted,
Donna R. Newman
Attorney for Jose Padilla
Andrew G. Patel
Attorney for Jose Padilla
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