MOATION TO DISSMISS AMENDED PETTION FOR WRIT OF HABEAS COURPUS

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06844444
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 29
• Document Creation Date: March 9, 2023
• Document Release Date: September 28, 2020
• Case Number: F-2016-02028

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XN TSB UMW OTATES.DIBTRICT COURT
Fon T BOimEgasi DIESTRICT hir NSIf YORK
J082 PADILLA,
DONNA R. RINNAN,
as Rent Friend of Jose Padilla 1
1
Petitioners,
V. 2 Civil Action
N. 4445
GRORGX W. BM,
DONALD AVMSVILD,
MOM ASHCROFT,
comma M.A. NARR
Respondents.
MOTION TO =MOS �
AKIN= PRTITION FOR WRIT OF RUMS coRvqs
411118 B. CONN!
United States Attorney
PAUL D. CMS=
Deputy Solicitor General
DAVID S. SALMONS
Assistant to the Solicitor General
DRIERTRA LANBROS
Attorney
RUC R. BRUCX
Assistant United States Attorney
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POOV,PSO
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TABLE OF coNtims
Page
NOTION TO DISMISS AMENDED PETITION FOR
WRIT OF HABEAS CORPUS 1
BACKGROUND 3
ARGUMENT
I. ATTORNEY DONNA NEWMAN LACKS STANDING TO FILE THE
PETITION AS PADILLA'S NEXT FRIEND 6
II. THIS COURT LACKS HABEAS JURISDICTION BECAUSE IT
LACKS TERRITORIAL JURISDICTION OVER PADILLA'S
PROPER CUSTODIAN 10
A. President Bush, Secretary Rumsfeld And
Attorney General Ashcroft Are Not
Proper Respondents 10
B. The Only Proper Respondent Is Outside
This Court'S Territorial Curiadiction 16
CONCLUSION 21
�
CERTIFICATE OF SERVICE 23
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TARIM OF ADTWORTTIZ8
CASES
Wens v.,aark, 325 U.S. 188 (1948) 17,18
illsdassigairUAnya_x,..kralzfa, No. 99 Civ. 5102,
2000 WI, 1616981 (S.D.N.I. Oct. 27, 2000) 15
Ansreqp V. Iowa, 59 F.3d 92 (8th Cir. 1995) 7
Anthony v. Untped Stapes, No. 92 Civ. 6652,
1993 WL 485755 (S.D.N.Y. Nov. 23, 1493) .15
Rgrodner v. Soptp, No. 92 Civ. 3481,
1992 WL 233879 (S.D.N.Y. Sept. 10, 1992) 15
Emlvett v. Ashcroft, No. 00 Civ. 2463,
2002 WL 287839 (S.D.N.Y. Feb. 27, 2002) 15
Ariae-Aoramonte v. INS, No. 00 Civ. 2412,
2000 WI, 1617999 (S.D.N.Y. Oct. 30, 2000) 15
Billiterk v. U.S. Board of Parolt, 541 F.2d 938
(2d Cir. 1976). 12,15
plango_y_i_Thcamburgb,, 942 P.2d 1487 (10th Cir. 1991) 15
polar V. Frank, 938 F.2d 377 (2d Cir. 1991) 22
Braden y- ARth gUdicial Circuit Court,
410 U.S. 484 (1973) passim
prewer v Lewis, 989 F.2d 1021 (9th Cir. 1993) 7
Brittingham v. mated States, 982 F.2d 378
(9th Cir. 1992) 15
Carbo v. united States, 364 U.S. 611 (1961) 17
IQre Cackrum, 867 F.Supp 494 (E.D Texas 1994) 10
Cole:oath* V. Looney, 235 F.2d 429 (10th Cir. 1956) 6
PSvis v AustiA, 492 F Supp. 273 OLD Ga. 1980) � 9
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Demlaniuk v._ Meese, 784 F.2d 1124 (D.C. Cir. 1986) 17
Ilumng_L,Almman, 875 F.26 244 (9th Cir. 1969) 29
In re Ferrens, 8 F.Cas. 1158 (S.D N.Y 1869) 9
itIrdv- Maley, 195 F.34 603 (11th Cir 1999) 9
rrenklin v. Massachusetts', 505 U.S 799 (1992) 14
Guerra v. Meesft, 786 F.2d 414 (D.C. Cir 1985) 12,15,17
Seadiv. Rumefeld, NO. 02-6827, slip op.
(4th Cir. June 26, 2000) 8,10
.p.1 Fe Hamra& 123 P. 3d 922 (6th Cir. 1997) 11
za_rajisislails, 112 F. 3d 105 (3d Cir. 1997) 9
Bandereon V. INS, 157 F.3d 106 (2d Cir. 1998) pasSim
Bog= If. Natass, 97 F.34 189 (7th Cir. 1996) 15
Jones v. Biddle, 131 P.2d 853 (8th Cir. 1942) 15
lone v. Calderon, 165F.34 1234 (9th Cir 1999) 17
Martinez-Ryser V. Ashcroft, NO. 98 Ctw. 5375,
2002 WL 372876 (8.D.N.Y. Feb. 14, 2002) ' 15
Weis ex rel. Kroll V. Woodford, 244 P.3d 1192
(9th Cir. 2001) 7
Niller ex rel. Jones .y. Stewart, 231 F.3d 1240
(9th Cir. 2000) 9
1418Bigeitlfli V. Johnsonl 71 U.S. 465 (1966) .... 14
Monk y_.-Siscretary of the New, 793 F.2d 364
(D.C. Cir. 1956) 13,16
MOUTIC81_.N% Knialltang 503 P.2d 967 (5th Cir. 1974) 15
Ex slerte Ouirin, 317 U.S. 1 (1942) 5,6
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Olinders v. Bennett, 148 F.2c1,19 ().C. Cir. 1945) . 12
Sch4qper N, Segmand, 401 U.S 487 (1971) paseim
Sphornhorst v. 4p4erson, 77 F. 8upp.2d 944
(S.D. Ind. 1999) 10
aluaarajujdatter, 491 F. 279 (9th Cir. 1974) 18
Smith ex rel. Wisaouri Puta Defender Commission V. ArmontragL,
812 r.2d 1050 (9th Cir. 1907) 9
Strait V. Laird, 406 U.S. 341 (1972) p 13,14
Brophy, 124 F.3d 093 (7th Cir. 1997) 9
Teleiday. Amor No. 00-CIV-6330, 2000 WI. 1280969
(S.D.N.Y. Sept. 11, 2000) 15,22
In ye Territo, 156 P.2d 142 (9th Cir '1946) 6
EN,JaartfLagaganca� 208 F. 938 (S.D. Cal. 1913) 6
Waripa N. Lambert, 159 8.3d 1/6/ (9th Cir 1990) 9
Vasaues v. Rena, 233 F.3d 600, cert. denied,
122 S. Ct. 43 (1st Cir. 2000) paesim
Mang v. Reno, 862 F. Supp. 801 (R.D.N.Y. 1994) 16
Whitmore v Arkannam, 495 U.S. 149 (1990) passim
Winckv. Danzig, 147 F. Supp. 2d 1278 (M.D. Ala. 2001) 10
Wriaht v, U.S. Brd. of Parole, 557 F.2d 74
(6th Cir. 1997) 18
Ti v, Paugans, 24 F.3d 500 (Id Cir. 1994) 12,15
re Zettlemovere 53 F.3d 24 (341 Cir. 1995) 7
1
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=ATM= and *MRS
18 U.S.C. 3144 20
28 U.S.C. 1391(e) 19
28 U.S.C. 1406(n) 2,21
28 U.S.C. 1631 2,21
28 U.S.C. 2241(a) 17
28 U.S.C. 2242 6,11
28 U.S.C. 2243 11,13
Authorization for Use of Military Force, Pub.L. No. 107-40,
116 Stat. 224 3
F40d. R. Civ. P. 4 20
Fed. R. Civ. P. 8].(a)(2) .
Fed. R. Civ. P. 82
20
20
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IN THE UN/TED MATHS DISTRICT COURT
FOR THE SOUTORRN DISTRICT OP NEW YORK
JOSE PADILLA,
DONNA R. NIMMAN,
as Next Friend of Jose Padilla
Petitioners,
v. Civil Action
No. 4445
GEORGE W. BUSH,
DONALD RUNSFRLD,
JOHN ASHCROFT,
COMMAND= M.A. MARR
Respondents.
NOTION TO DISMISS
AMIN= PETITION FOR WE= OF mammas CORPUS
Respondents hereby move to dismiss the amended petition for
a writ of habeas corpus for lack of jurisdiction. The petition
in this case seeks to interject this Court into the President's
conduct of ongoing hostilities. Specifically, the petition makes
the extraordinary request that this Court order respondents to
return Jose Padilla (a/k/a Abdullah Al Muhajir) from Charleston,
South Carolina -- where he is being held by the United States
military an an enemy combatant -- to New "York to then be released
into the public. The petition, however, contains two independent
-- and equally fatal -- jurisdictional defects that require this
Court to dismiss the petition, or at a minimum, transfer this
habeas action to South Carolina.
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First, the Court lacks jurisdiction because the Petition has
not been properly brought on Padilla's behalf. The habeas
statute requires that a detainee himself sign the petition or, if
he is unable to do so (as here), that someone with 'next friend'
standing bring it on his behalf. .Attorney Donna R. Newman
asserts "next friend' status to bring this habeas action on
behalf of Padilla. She does not however, satisfy the
'significant relationship' requirement for next-friend standing
set forth by the Supreme Court in mbilmargry. piralins140, 495 U.S.
149 (1990).
Second, and in any event, the Court lacks habeas
jurisdiction because no proper respondent with "custody" over
Padilla is present within this Court's territorial jurisdiction.
The amended habeas petition names President Bush, Secretary of
Defense Rumsfeld, Attornek General Ashcroft and Commander M.A.
Narr as respondents. Only one -- Commander Herr, the commanding
officer of the Naval brig in South Carolina -- is a proper
respondent. And none of the named respondents -- including
Commander Marr - is within this Court's territorial jurisdiction.
This Court therefore lacks habeas jurisdiction over the
yetition.1
I This motion to dismiss is addressed to the Court's lack
of jurisdiction to entertain the petition and accompanying
requests for relief. If the Court denies the motion to dismiss,
it should transfer the action to South Carolina, where the
Government would then address the merits of any of the claims
2
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aaCIGHOUND
On September 11, 2001, the al Qaida terrorist network
launched a large-scale attack on the United States, killing
approximately 3,000 persons, and apecifically targeting the
Nation's financial center and the headquarters of its Department
of Defense. The SepteMber 11 attacks inflicted the loss of more
American lives than the attack at Pearl Harbor, and were followed
by a major military response. Shortly after the attacks,
Congress authorized the Prezident to use liforce against the
nations, organizations, or persona he determines planned,
authorized, committed, or aided the terrorist attacks that
occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international
terrorism against the United States by such nations,
organizations, or persons." Authorization for Use of Military
Force, Pub. 11. No. 107-40, 1.2.5 Stat. 224 (2001). In authorizing
such force, Congress emphaeised the "unusual and extraordinary
threat to the national security and foreign policy of the United
States" posed by the forces responsible for the September 11
attacks, and that the President has authority under the
Constitution to take action to deter and prevent acts of
international terrorism against the United States." Iud.
The President, acting pursuant to his authority as Commander
in Chief and with express congressional support, has dispatched
raised in the petition. See 28 U.S.C. 1406(a), 1631.
'3
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the armed forces of tfie United States to Afghanistan to seek out
and subdue the al Qaida terrorist network and the Taliban regime
that had supported and protected that network. The ongoing
military operations in Afghanistan and elsewhere -- which are
being conducted not only by thousands of man and women of the
United States armed forces but also by coalition forces sent by
our international allies -- have, inter aUa, resulted in the
destruction of al Qaida training camps, removal of the Taliban
regime that supported al Qaida, and gathering of vital
intelligence concerning the plans, operations, and workings of al
Qaida and its supporters. Numerous members of the military
forces have lost their lives, and many others have suffered
casualties as part of the campaign, which remains active and
ongoing. See generally www.armv.miliendurinafree4om. While the
military campaign is ongoing, the al Qaida network and those who
support it remain a serious threat, as does the risk of future
terrorist attacks on United States' citizens and interests
carried out, as were the attacks of September 11, through covert
infiltration of the united States by enemy belligerents. As
explained below, Padilla is currently being 'held, consistent with
the laws and customs of war, in the custody and control of the
military as an enemy combatant in this ongoing armed conflict.
Padilla was arrested in Chicago on May 8, 2002, pursuant to
a material witnese warrant related to grand jury pro6edings in
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the Southern District of New York. Pursuant to an order of this
Court, Padilla was detained it the Metropolitan Correctional
Ceter in New York City. See Amend. Pet. II 15, 19.
On June 9, 2002, the President determined that Padilla was
an enemy combatant and should be transferred to the control of
the United States military. Thereafter, the Department of
Justice requested that this Court vacate the material witness
warrant. This Court vacated the warrant on June 9, and Padilla
was transferred to the exclusive control of the United States
military and transported to the Consolidated Naval Brig in
Charleston, South Carolina for detention as an enemy combatant.
The initial petition for habeas relief was filed on June 11,
after this Court had vacated the material witness warrant and
after the military had transferred Padilla to South Carolina for
detention and questioning as an enemy combatant.
The authority Of the United States to seize and detain enemy
combatants is well settled -- and vital to our core military
objectives, including preventing enemies from rejoining the
conflict and gathering intelligence to prevent attacks an
Americans and U.S. interests. See Ex parte Ouirin, 317 U.S. 1,
31, 35 (1942) ("Eulnlawful combatants" -- or %those who during
time of war pass surreptitiously from enemy territory into our
own * * * for the commission of hostile acts involving
5
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'destruction of life or property" -- are msubject to capture and
detention"); see also In re Territo, 156 F.2d 142, 145 (9th Cir.
1946); Pc. _matte Toscana, 208 F. 938, 940 (S.D. Cal. 1913). The
authority to capture and detain is not diminished by the fact
that the enemy combatant is an American citizen.. See Quiria, 317
U.S. at 37-38 (s[clitizens who associate themselves with the
* * * enemy * * * and with its aid, guidance 'and direction enter
this country bent on hostile acts are enemy belligerents");
accord aglageugliv. loogagv, 235 F.2d 429, 432 (10th Cir. 1956);
In re Ter:rats:I, 156 F.2d at 145.
ARGUMENT
X. ATTOBBST DONNA MEW LAMS STAID= TO TT= TUB FiTITION AS
PADILLWB MIXT FAMED.
This Court lacks jurisdiction over this petition because
attorney gonna Newman lacks anext friend" standing to bring this
habeas action on Padilla's behalf.2
2 Attorney Newman signed the first petition purportedly as
Padilla's lawyer. In her amended petition, she appears to
acknowledge that a *next friend,* not counsel, must bring the
case on Padilla's behalf. That is correct. The habeas statute
requires that an application "shall be in writing signed and
verified by the person for whose relief it is intended or jay
someone acting in his behalf." 28 U.S.C. 2242 (emphasis added).
As the Supreme Court has explained, the underscored words were
intended to confer "next friend" standing on a third party where
a detained prisoner is unable (aueually because of mental
incompetence or inaccessibility") to seek relief himself.
Whitmore V. Arkansas, 495 U.S. 149, 162-63 (1990). Thus, where a
prisoner is inaccessible, only a proper *next friend" may file on
his behalf. But for the reasons set forth herein, Newman cannot
satisfy the vigorous restrictions on next-friend etanang set
forth by the Supreme Court in Whitmore.
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It is well established that 'before a federal court can
Consider the merits of a legal claim, the person seeking to
invoke the jurisdiction of the court must establish the requisite
standing to sue' under Article III of the Constitution. Whitmore
v. Arkansas, 495 U.S. 149, 154 (1990). Generally, to establish
standing, the 'complainant must allege an injury to himself that
is 'distinct and palpable;" X. at 155 (citations omitted). In
Whitmore, the Supreme Court recognized that in visry specific and
limited circumstances, a non-injured person may bring an action
as a detainee's 'next friend.' Id. at 162-63. And it cautioned
that "next friend' standing is by no means granted automatically
to whomever seeks to pursue an action on behalf of another.' Id.
at 163.
In order to assert next friend standing, a person must
*establish, not only that the detainee cannot himself sign the .
habeas petition, but also that the 'next friehd" has a
'significant relationship' with the detainee, and is 'truly
dedicated" to his best interests. See Mbitmore, 495 U.S. at 163-
64; MABBie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1194 (9th
Cir. 2001); Amara= v. Iowa, 59 F.3d 92, 93 n.3 (8th Cir. 1995);
In re_Zettlemover, 53 F.3d 24, 27 n.4 (3d Cir. 1995). The
'burden is on the 'next friend' clearly to entablish the
propriety of Dun1 status and thereby justify the jurisdiction of
the court." Id. at 164; see Sower v. Loam 989 F.2d 1021, 1026
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(9th Cir. 1993) (petitioners claiming next-friend status must
present "clear" end tkneaningful evidence � satisfying Whitmore
,requirements).
As the Fourth Circuit just reaffireadinNapdi v, =intact,
No. 02-6827, slip op. (4th Cir. June 26, 2002) (copy attached)--
which held, isr.ZE faith, that a federal public defender lacked
next-friend standing to bring a habeas petition on behalf of an
enemy combatant in the absence of a significant pre-existing
relationship -- such "Murisdictional limitations have their
roots in the respect courts owe the other branches of our
government," id. at 19, and are important *1imitd ton the extent
to which] the conduct of war may be reduced to the medium of
litigation," id. at 17.
' Attorney Newman has nOt met her burden of establishing next-
friend standing. Although she alleges that while briefly serving
as his attorney for the material witness proceedings she met
regularly with Padilla in New York, filed and argued motions on
his behalf, and cansulted with his family and the government, see
Amend. Pet. �11 7, 19, 20, that is not sufficient to establish
next-friend standing. Newman's entire prior relationship with
Padilla lasted from May 15 to Mine 9, see 5/16/2002 Order
(appointing Newman under Criminal Justice Act), Amend. Pet. i 22
-- or about three weeks. The fact that Newman has done her job
as appointed counsel on a now dismissed material-witness matter
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for three weeks does not, without more, mean that she has
established a "Significant relationmhips with the detainee.
"Next friend" standing is typically reserved for those who
have a close, personal relationship with a detainee -- like a
parent, spouse, or sibling. See, &Raw Vargas v. Lambert, 159
F.3d 1161, 116e (9th Cir. 1998) (parent); In_re_listsinik, 112 F.3d
105, 106 n..1 (3d Cir. 1997) (daughter); math ex rel...-Mimmouri
Publ Defender Comm' v. Azigentreat. 812 F.2d 1050, 1052 (8th Cir.
1987) (brother); In re Ferrenm, 8 F. Cam. 1158, 1159 (9.D.N.Y.
1869) (wife); see also T.W. v. Broohy, 124 F.3d 893, 897 (7th
Cir. 1997) ("next friend suet be an appropriate alter ego for a
plaintiff * * * ordinarily the eligibles will be confined to the
plaintiff's parents, older siblings * * * or a conservator or
other guardian, akin to a trustees). More distant relatives and
acquaintances generally do not have a sufficient relationship.
See, g-g,, Davis v. Austin, 492 F. Supp. 273 (N.D. Ga. 1980)
(neither detainee's first cousin nor a minister who had counseled
detainee could sue as next friend) ((Afraid with approval in
likaanre, 495 U.S. at 164).
Although attorneys have occasionally been accorded "next
friend' status, it is only where the attorney has had a
longstanding relationship with the prisoner. sea, mi,gua miller
ex rel. Jones Ir. atowart, 231 F.3d 1248, 1251 (9th Cir. 2000,
stay vacated by 63110.s. 986 (2000); randy. Haley, 196 F.3d 603,
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628 (11th Cir. 1999) (*in certain circumstances, attorneys � * *
Mt� have a long history of representing a client with mental
disorders may appear as *next friend"); Sohornhogniv. Amaiumm,
77 P. Supp. 2d 944, 951 (S.D. Ind. 1999) (attorneys had
represented prisoner for between five and ten years); In re
Cockrum, 867 F. Supp. 494, 495 (LD. Texas 1994) (attorney
represented prisoner for a year).
Attorney Newman, thus., does not qualify as Padilla's 'next
friend.' Her three-week representation of Padilla is not akin to
the relationship between a prisoner and his parent, spouse, or
sibling -- or even like that between a long-standing lawyer and
client. Moreover, the petition indicates that Attorney Newman
has consulted with members of Padilla's family. Amend. Pet. i
20. That there may be some genuine "next friendsN available
underscores the inappropriateness of conferring such status on
Attorney Newman. See Nandi, No. 02-6827, slip op. at 17
(lawyer's absence of significant relationship stood sin stark
contrast to the close familial connection (of detainee's father]
that was right around the corner").
XI. TS COURT LACIS PUMAS JURXMOICTICOr =CAM XI LACKS
TUMOR/AL JORXRD/CTICK OVER PADILLA'S'PROPIR CURTODXAN.
A. President Bush, Secretary Rumefeld And Attorney general
Ashcroft Are Not Proper Respondents.
In any event, even if Newman could satisfy the requirements
of next-friend standing, this Court would still lack habeas
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jurisdiction over the petition. There is only one proper .
respondent for a habeas petition filed to challenge the detention
of Padilla, and that is the commanding officer of the Naval Nrig
in South Carolina, Commander Melanie A, Harr, United States Navy.
As discussed below, the proper habeas respondent is a prisoner's
immediate, not ultimate, custodian. President Bush, Secretary of
Defense Rums feld and Attorney General Ashcroft are therefore not
proper respondents in this case.
By its terms, the federal habeas corpus statute provides
that the writ 'shall be directed to the person having custody of
the person detained." 28 U.S.C. 2243. Thus, the proper
respondent in a habeas case is the person who holds the
petitioner in custody. Braden v. 30" Judicial Circuit Court,
410 U.S. 484, 494-95 (1973) ("(tlle 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."); see
also 28 U.S.C. 2242 (habeas petitioner must 'allege * * * the
name of the person who has custody over bile).
In this case, Commander Merr is the immediate custodian and
therefore the only proper respondent. See, fug,_, Vasquez v.
Reno, 233 F.3d 680, 693 (let Cir. 2000) ('case law establishes
that the warden of the penitentiary not the Attorney general is
the person who holds a prisoner in custody for habeas purposes"),
cert. denied, 122 S..Ct. 43 (2001); =mammal, 123 F.3d 922,
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925 n.2 (6th Cir. 1997) (prison warden, not executive with
ultimate authority over prisoner; is proper habeas respondent);
xj. V. peugans, 24 F.3d 500, 507 (34 Cir. 2994) (name; dismissing
notion that Attorney General could be proper habeas custodian);
Guerra v. Neese, 786 F.24 414, 416 (D.C. Cir. 1986) (wardens at
individual detention facilities, not Parole Commission, were
proper custodians even though Commission had power to grant
releases/ otherwise, custodian could be *any person or entity
possessing some sort of power to release' prisoner)/ Sanders v.
Bennett, 148 F.2d 19, 20 (D.C. Cir. 1945) (*proper person to be
served (in habeas action] is the warden of the penitentiary * * *
rather than an official in Washington, D.C. who supervises the
warden').
As the Second Circuit has explained in an analogous-context'
flit would stretch the meaning of the term ('custodian"]
beyond the limits * * * to characterise the Parole Board as
the 'custodian' of a prisoner who is under thercontrol of a
warden and confined in a prison * * * At that point the
prisoner's relationship with the Parole Board is based
solely on the fact that it is the decision-making body which
may, in its discretion, authorize a prisoner's release on
parole.
pilliteri v. U.S..Soard of Parole, 541 F.2d 938, 948 (24 Cir.
1976); see madam= v. INA, 157 P.34 106, 126 (2d Cir. 1998)
(B111iteri, appears to bar the designation of a higher authority
* * * as a custodian when a habeas petitioner is under-the day-
to-day control of another custodian"). Indeed, the Second
Circuit has pointedly noted that, although the Attorney General
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ultimately has control over all prisoners in the federal prison
system, no one seriously suggests that (he] is a proper
respondent in prisoner habeas cases." Z. at 126.
Monk v. asoretary of the New, 793 P.2d 364 (D.C. Cir.
1986), is also instructive. There, a corporal in the Marine
'Corps brought a habeas action challenging his court-martial
conviction, and named the Secretary of the Navy as the
.respondent. xd. at 368. He argued that because the Secretary
WAS his �ultimate custodian," he was a proper habeas respondent.
2g. at 369. The court of appeals flatly rejected the claim, and
held that the 'immediate" custodian (the local commandant of the
facility in which Monk was incarcerated) was the proper
respondent, not the Secretary. Ibid.
Further, as the First Circuit has explained, the very text
of Section 2243, which provides that �Mlle writ * * * shall be
directed to Ilia DASSM having custody of the person detained"
(emphasis added), indicates that there is only one proper
respondent to a habeas petition -- juju, the immediate custodian:
Section 2243 does not indicate that a petitioner may
choose from among an array of colorable custodians, and
there is nothing about the nature of habeas practice
that would justify a court in stretching the statute's
singular language to encompass so mischievous an
interpretation.
Vasouess, 233 F.3d at 693.3
3 fitrait.x.-liaixd, 406 U.S. 341 (1972), in no way alters
this analysis. Strait addressed the factually unique context of
an unattached, inactive Army reservist who lived in California,
whose only meaningful contact' with the Army had been in
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Accordingly, President Bush is not Padilla's cuitodian for
habeas purposes. In any event, it is well settled that a court
of the United States "has no jurisdiction * * * to enjoin the
President in the performance of his official .duties' or otherwise
to compel the President to perform any official act. Fannin v.,
Massachueetts, 505 U.S. 788, 802-03 (1092) (plurality opinion)
(citations omitted): id. at 825 (soalia, concurring in part and
concurring in the judgment) .4
California, but whose "nominal commander was the commander of
the Army's recordkeeping center, located in Indiana, who had
always "enlisted the aid and directed the activities of armed
forces personnel in California in his dealingm' with the
petitioner. Id. at 343-44. The Court concluded that the
commander of records WAS "present' in California for habeas
purposes based on his reliance on the California Officers in
virtually all of his dealIngs with the petitioner. zgl. at 345�
axial has no application here because neither Padilla nor those
responsible for his detention are present in this district.
Moreover, the Court in fitra# recognized the unique facts before
it and explicitly rejected any suggestion that it was abandoning
echlamer v. Seaman., 401 U.S. 487 (1971), or the rule that
*presence of the 'custodian' within the territorial jurisdiction
of the District Court was a sine smapap,." Id. at 343: see also
Fescue& 233 F.3d at 695-96 (Strait *cannot plausibly be read
* * * to consign to the scrap heap the substantial body of well-
reasoned authority holding that a detainee must name his
immediate custodian as the respondent to a habeas petition').
4 Although the Supreme Court has left open the question
whether the President may be ordered to perform a purely
"ministerial" duty, 505 U.S. at 802, the relief petitioner seeks
-- primarily, hie release from custody -- is far from
*ministerial." See HAssissippi v. ilanwn, 71 U.S. 465, 499
(1866) (*duties (that] must necessarily be performed under the
supervision of the President as commander-in-chief" are "in no
just sense ministerial" but are "purely executive and
political.").
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Nor is the Attorney General Padilla's habeas custodian.
Indeed, the Attorney General is in no sense Padilla 's cuatodien
at all: as noted, when the President designated Padilla as an
enemy combatant, he was transferred out of the control of the
Justice Department and into the control of the military.'
Secretary Rumsfeld also does not qualify as Padilla's habeas
custodian. Again, as the courts (including the Second Circuit
and this Court) have repeatedly held, the proper custodian for
habeas purposes is the "immediate custodian' -- generally the
local warden or superintendent -- of the facility where a
petitioner is detained.' That is because the warden has day-to-
5 In gendersqn, the second Circuit reserved judgment about
whether the Attorney General might be the proper respondent in a
habeas action filed by an alien challenging his deportation. See
157 F.3d at 129-27 (discussing unique circumstances involved in
immigration matters). The particular concerns implicated in
alien habeas cases, however, do not apply here. In any event,
this Court has since found that the Attorney General is ogaz the
proper respondent in such cases. See Peivett v. Alaggatt, NO. 00
Civ. 2463, 2002 WL 287839, at * 1 (S.D.W.Y. Feb. 21, 2002);
Nartinmx-Rymer V. Ashcrott, No. 98 Civ. 5375, 2002 WL 372876, at
* 2 (S.D.N.Y. Feb. 14, 2002); laiaday. ano, No. 00-Ctv-6338,
2000 WL 1280969, at * 2 (S.D.N.Y. Sept. 11, 2000). But see
Waiode-Zelava v. $0111rov, No: 99 Civ. 5102, 2000 NIA 1616981, at
*4 (S.D.N.Y. Oct. 27, 2000); Arias-Anramonte v. ma, No. 00 Civ.
2412, 2000 WL 1617999, at * 8 (S.D.N.Y. Oct. 30, 2000).
See, AL,46., Henderson, 157 F.3d at 122; pillitert, 541
F.2d at 948; Anthonv v. 9bited_States, No. 92 Civ. 6652, 1993 WL
485755, at * 1 (S.D.N.Y. Now. 23, 1993); BRNHanar v. fficptt, No.
92 Civ. 3481, 1992 WL 233879, at * 2 (8.D.6.Y. Sept. 10, 1992);
see also Vasquez, 233 17.34 at 691; Hogan v. Honks, 97 F.34 189,
190 (7th Cir. 1996); 21, 24 F.3d at 507; MX1=1010121M V. United
States, 982 P.24 378, 379 (9th Cir. 1992); piano� v. Thornburqh,
942 F.24 1487, 1491-92 & n.10 (10th Cir. 1091); Guerra, 786 F.2d
at 416; flounce 11% Waiting 503 111.2d 967, 969 (5th Cir. 1974);
gones v. Riddle, 131 P.24 853, 854 (8th Cir. 1942).
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day control over the petitioner and is the one who can free the
prisoner should the writ be granted. See Wane v. gam, 962 P.
Supp. 801, 811-12 (S.D.N.Y. 1994) ("Mince the result of an
issuance of the writ is a direction to the respondent to "free
the body' of the petitioner * * * the court issuing the writ must
have juriediction over the person holding the petitioner");
accord Nenderoon, 157 F. 3d at 122. Although Secretary Rumafeld
may he among those who exerciie some degree of control over
Padilla, he is not Padilla'e immediate custodian, and, hence, is
not a proper respondent here.
In sum, the President, Attorney General Ashcroft, and
Secretary Rumsfeld are not proper respondents in this habeas
petition, and at the very least, these respondents Should be
dismissed from this action. Only Commander Marr. could properly
be named as a respondent in a habeas action, such as this one,
brought while Padilla is held in the Consolidated Naval. Brig in
Charleston, South Carolina. But for the reasons set forth below,
this Court lacks territorial jurisdiction over any habeas
petition brought against Commander Karr.
B. The Only Proper Respondent Ix Outolds This Court's
Territorial Jurisdiction.
The Court lacks habeas jurisdiction because Commander Nam
the only proper respondent in this case, is not within this
Court's territorial jurisdiction. And as the Supreme Court has
made clear, the absence of [the] custodian is fatal to * * *
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jurisdiction.6 Schlangerv. Seamans, 401 U.S. 487, 489 (1971).7
The federal habeas corpus statute contains an express'
territorial limitation that restricts the jurisdiction of
district courts to granting the writ only within their
EausgLixs_jusiadjationa." 28 U.S.C. 2241(a) (emphasis added).
Congrees wrote the limitation into the habeas statute for several
reasons:
it was thought inconvenient, potentially embarrassing,
certainly expensive and on the whole quite unnecessary to
provide every judge anywhere with authority to isms the
Great Writ on behalf of applicants far distantly removed
from the courts whereon they sat.
carbo V. Phited States, 364 U.S. 611, 617 (1961). Thus, when the
Supremo Court considered whether a custodian "must be in the
territorial jurisdiction of the District Court,/ Balingsx, 401
U.S. at 489, it unequivocally answered, eyes." 241. at 491; see
also Wilma v. Calderon, 165 F.3d 1234, 1237 (9th Cir. 1999)
(dismissing petition against out-of-state custodian because
7 Nor are Secretary Rummfeld and Attorney General Ashcroft
within this Court's territorial jurisdiction, either. For
purposes of habeas jurisdiction, those officials are 'Ipresent'
only at their official posts in Virginia (at the Pentagon) and
Washington, D.C., respectively. See Monk, 793 F.2d at 369 & n.1
(rejecting claim that Secretary of Navy is proper habeas
respondent but noting that Pentagon officials, in any event, are
located in the Eastern District of Virginia); gulania V. saw,
784 F.2d 1114, 1116 (D.C. Cir. 1966) (Bork, a., in chambers)
(jurisdiction over Attorney General lies in D.C. Circuit in the
"very limited and special circumstances' where location of
priooner was kept confidential). Thus, even if the Court were to
find, contrary to settled precedent, that the Attorney General
and Secretary are Padilla's habeas custodians, the Court would
etill lack jurisdiction over them and the petition.
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*habeas corpUs jurisdiction does not extend to officials outside
the court's territorial limitsh)i anima. 786 Fad at 417 (same);
Wright v. U.S. srd4 oZ tavola, 557 F.2d 74, 77 (6th Cir. 1977)
(same)/ =laza v. patter, 491 F. 279, 281 (9th Cir. 1974)
(district court's power to issue writ is *legislatively limited
to its territorial jurisdictiono), "Ina v. Danzlq, 147 F. Supp.
2d 1278, 1283 (M.D. Ala. 2001) (dismissing serviceman's habeas
petition because custodian was not within court's territorial
jurisdiction).
The Second Circuit'a decision int:Wars= does not counsel
against this understanding of a district court's habeas
jurisdiction. There, the Court assumed, without deciding, that a
district court would have jurisdiction over a habeas respondent
if the state long-arm statute could reach him. See Hapauggin,
157 F.3d at 123. This assumption was based on a statement in
Bamagua; 410 U.S. at 495, that a custodian could be reached by
service of process." See tAndexam, 157 F.3d at 122 (quoting
Duggan). sradca's reference to service, however, cannot be read
to have altered the rule of Aghlanger (requiring territorial
jurisdiction over the custodian) -- and to tacitly allow state,
long-arm statutes to trump the territorial limitations in the
federal habeas statute. To the contrary, Bud= overruled a
portion of Ahrens v. auk, 325 U.S. 188 (1948), which had held
that bath the detainee and his custodian had to be within the
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district court's territorial jurisdiction. X. at 189-93. while
the Court in amid= held that a &maims need not be present in a
court's territorial jurisdiction, it did not alter the settled
requirement that the gistodien be physically present in the
district. Indeed, citing �ohlanger, it found that the lower
court had jurisdiction because the respondent was "properly
served in that district.' Braden, 410 U.S. at 500 (emphasin
added) .� Thus, Buda did .not question, much less eliminate, the
well-established principle (reaffirmed only two years earlier in
Ochlanoer) that a habeas court must have territorial jurisdiction
over a petitioner's custodian.
Furthermore, the Supreme Court has also explicitly rejected
the suggestion that 28 U.S.C. 1391(e) -- which permits nationwide
service of process on government officers in civil cases --
applies in habeas cases. See Schlanger, 401 U.S. at 490 n.4
(section 1393(e) cannot serve to Isexten(41 habeas corpus
jurisdiction"); see also gummy. annum 875 F.2d 244, 248 (9th
dr. 1989) (section 1391(e) "does not extend habeas corpus
I The Court in Brad an also embraced the dissenting opinion
of JUstice Rutledge in Annean. See 410 U.S. at 495. There,
Justice Rutledge reviewed the history of the habeas statute, and,
particularly, the words "within their respective jurisdictions.'
He concluded that, with this limitation, Congress meant to
foreclose district judges from "imputing] process against jailers
in remote districts' and also to ensure that "process does not
run beyond the territorial jurisdiction of the issuing court.'
33$ U.S. at 204-05i see also id. at 205 (limitation intended to
prevent district courts from "issu(ingl process to run through
the country * * * and thus to bring before them jailers without
regard to distance.')
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jurisdiction to persons outside the territorial limits of the
district court"). If a federal statute permitting natidnwide
service on federal officeral does not trump the territorial limit
on habeas jurisdiction, then a state long-arm statute cannot
either.�
The proper custodian in this case, Commander Harr, is
located at her duty station in Charleston, South Carolina. Thus,
the only place where a habeas petition could be filed on.
Padilla's behalf is South Carolina, not New York."
' Indeed, a state long-are statute is invoked by a federal
court via Fed. R. Civ. P. 4(0). And the federal rules make clear
that they "shall not be construed to extend or limit the
jurisdiction of the United States distridt courts." Fed. R. Civ.
P. 132, see also Fed. R. Civ. P. Sl(a)(2) (rules of civil
procedure inapplicable in habeas cases to extent they would
conflict with habeas statute).
112 Juriediction, of course, is not to be confused with
venue. And although, as the petition notes (Amend. Pet. 1 14),
venue coneideratione also"apply in llamas cases, such
considerations do not point to this court as the proper forum
hare. In the first place, and contrary to the petition's claim,
thie Court does not have "unique familiarity with the facts and �
circumstances of this case." Amend. Pet. 114. The matter that
brought Padilla initially into this Court's jurisdiction was his
arrest on a material witness warrant. That matter -- and all the
facts and issues that it raised -- is now over. Padilla is no
longer being detained as a material witness, pursuant to 1S
U.S.C. 3144, but as an enemy combatant, pursuant to the laws of
war. The petition for habeas corpus, filed after Padilla's
transfer from this jurisdiction, challenges Padilla's detention
in South Carolina as an enemy combatant. This is an entirely
different case -- involving different legal issues and
implicating vary different policy concerns. And although we
agree that the resolution of the case does not require Padilla's
presence (see Amend. Pet. I 14), we also note that the petition
elsewhere requests an evidentiary hearing. See id. at 9.
However this case may play out in the future with regard to such
a hearing, neither the issues implicated by the merits of the
petition nor concerns about judicial economy make this district a
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---PROV,ONO
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CONCLUSIOK
This Court lacks jurisdiction over this habeas petition
because attorney Newman does not have *next friend* standing to
bring the case on Padilla'e behalf. Moreover, the Court lacks
habeas jurisdiction over this petition because the only proper
respondent, Commander Sam is outside this Ceurt's territorial
jurisdiction. President Bush, Attorney General Ashcroft, and
Secretary Rumsfeld are not proper respondents and, in any event,
they, too, axe not within the Court's juriediction. Accordingly,
the Court should dismiss the petition, or at a minimum, transfer
this habeas action to South Carolina.
Attorney Newman's lack of standing would, of course, deprive
way court of jurisdiction over the petition. Accordingly, if
this Court agrees that Newman lacks standing, it should dismiss
the petition. If, however, the Court believes that Newman may
maintain the action as Padilla's next friend (or that the next-
friend issue may be resolved after transfer by a court with
habeas jurisdiction), it should transfer the case to the district
court in South Carolina, the only district court with
jurisdiction over the proper respondent. Be 28 U.S.C. 1406(a),
� 1631.11
lonIPIMMIMMIN�
better forum than the district of South Carolina.
11 Some courts have ordered transfer while leaving for the
transferee court' 8 resolution other threshold grounds for
dismissal, at least where the ground for transfer was clear. See
Solar v. nail's, 938 P.2d 377, 379-380 (2d Cir. 1991)
(transferring employment discrimination case from New York to
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8E'd 1U101
Repectfully submitted,
B. COREY
itedStatea�Attorney
44�Al .11). Cabwid'it I
PAUL n. anew
Deputy Solicitor General
awL; 15. Jegmmai6
D S. SALMONS
Assistant to the solicitor General
agmma+wt4a_ 14.44Afteise..4
DBMSTRA LAMBROS
Attu=
MICR.
Assistant United States Attorney
Ohio on venue grounds, and leaving to Ohio court to decide
government's' challenge based on failure to exhaust administrative
remedies 'sin the first instance'); ZeladO, v� ASUB, No. 00-Civ-
6338, 2000 WL 1280969, at * 2 & n.7 (S.D.N.Y. Sept. 11, 2000)
(transferring habeas claim because New York court lacked
jurisdiction over proper custodian without deciding government's
argument that petition should be dismissed for failure to exhaust
administrative remedies, noting- that It(tlhe Government is free,
of course, to renew* its claims for dismissal in the transferee
court).
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(Opinion attached to Respondent's Motion to dismiss)
YASER ESAM HAMDI V. DONALD RUMSFELD, et al.
(4th Cir. June 26, 2002)
http://laws.findlaw.com/4th/026827p.html
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