                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


 STEPHEN FISHMAN,

                 Petitioner,

         v.                                            Civil Action No. 18-521 (RDM)

 JEFFERSON B. SESSIONS III, United States
 Attorney General,

                 Respondent.


                                   MEMORANDUM OPINION

       Petitioner Stephen Fishman initiated this action by filing a pleading captioned “Petition

for Writ of Habeas Corpus by a Person Detained in Federal Custody Pursuant to 28 U.S.C. §

2241 . . . and . . . Petition for Declaratory Judgment Pursuant to 20 U.S.C. § 2201,” naming

United States Attorney General Jefferson Sessions as respondent. Dkt. 1 at 1. Consistent with

the rules governing habeas petitions, Fishman paid the $5 filing fee. See 28 U.S.C. § 1914(a). In

all other cases, the party “instituting any civil action, suit or proceeding” must either pay a filing

fee of $400, see id. § 1914(a), (b), and accompanying note, or receive leave of court to proceed

in forma pauperis, see 28 U.S.C. § 1915.

       Fishman is currently incarcerated at the Federal Correctional Institution at Terminal

Island, San Pedro, California (“FCI Terminal Island”). Dkt. 1 at 9. Although Fishman’s 145-

page petition is not the picture of clarity, his principal arguments appear to be that his conviction

is “null and void” because the district judge that issued his sentence “lacked authority to take

jurisdiction of the Federal Criminal Case” because he was “subject to Mandatory Judicial

Disqualification under . . . 28 U.S.C. § 455(b)(4),” and that the evidence was insufficient to
sustain his conviction. Dkt. 1 at 36. Fishman requests that the Court address twelve questions,

the answers to which, he argues, will “[c]larify the legal rights of the Petitioner” and “resolve”

the question of “the legality of the detention of the Petitioner.” Id. at 34. These questions begin

with broad inquiries about the structure of the federal government and its laws—e.g., “Is the

Constitution of the United States . . . the Supreme Law of the Land?” id. at 26—and culminate in

questions regarding the lawfulness of Fishman’s confinement, e.g.—“Is the Respondent holding

the Petitioner in [c]ustody . . . in violation of the Constitution, Laws, and/or Treaties of the

United States[,] thus subjecting the Petitioner to a form of kidnapping by and through unlawful

confinement?” id. at 30.

       Fishman seeks several forms of relief. He asks that the Court (1) declare that he is being

held in custody “in direct violation of the Constitution, Laws, and/or Treaties of the United

States” and that he has therefore been subjected to “kidnapping . . . for profit and gain, in

furtherance of Criminal Racketeering Activity;” id. at 137–38; (2) order the respondent to

“release [him] from said unlawful confinement,” id. at 138; and (3) order that respondent provide

him with transportation and $500 in “traveling funds” upon his release, id. Fishman also alleges

that he has suffered damages of $1,565,217.39 for each day of unlawful confinement. Id. at 12.

       Fishman’s requests for transportation funds and damages do not sound in habeas and,

accordingly, cannot properly be considered in the context of his pending petition. Nothing in 28

U.S.C. § 2241 authorizes a court to order transportation or to award traveling funds or damages.

As the Supreme Court has explained, if a “prisoner is seeking damages, he is attacking

something other than the fact or length of his confinement,” and thus “habeas corpus is not an

appropriate or available federal remedy.” Preiser v. Rodriguez, 411 U.S. 475, 494 (1973).




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       This defect, moreover, cannot be cured by simply treating Fishman’s claims for damages

and similar relief as distinct from his claims that properly sound in habeas corpus. To start,

Fishman has not paid the required filing fee of $400 to bring such a civil action, nor has he

sought leave to proceed in forma pauperis. Moreover, to the extent that Fishman’s claim for

damages, if successful on the merits, would “necessarily imply the invalidity of [his]

confinement or shorten its duration,” he cannot proceed without first succeeding on his related

habeas claim. Davis v. U.S. Sentencing Comm’n, 716 F.3d 660, 665 (D.C. Cir. 2013) (emphasis

omitted) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)).

       Fishman’s claim for “release . . . from . . . unlawful confinement,” Dkt. 1 at 138, in

contrast, is founded on “challeng[es] [to] the very fact or duration of his physical imprisonment,”

Preiser, 411 U.S. at 500. Before considering the merits of Fishman’s petition, however, the

Court must identify “the proper respondent to [the] petition” and must determine whether the

Court “ha[s] jurisdiction over him or her.” Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). As

currently framed, Fishman’s petition fails on both counts.

       First, the petition incorrectly names Attorney General Sessions as the respondent, arguing

that because he is responsible for administering the Federal Bureau of Prisons, he is ultimately

responsible for Fishman’s confinement. Dkt. 1 at 16–18. “[T]he default rule” in “habeas

challenges to present physical confinement,” however, “is that the proper respondent is the

warden of the facility where the prisoner is being held, not the Attorney General or some other

remote supervisory official.” Padilla, 542 U.S. at 435; see also 28 U.S.C. § 2242; Stokes v.

United States Parole Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004); Chatman–Bey v.

Thornburgh, 864 F.2d 804, 811 (D.C. Cir. 1988). Accordingly, the warden of the facility where




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Fishman is confined—and not the Attorney General—is the proper respondent for purposes of

Fishman’s petition.

       Second, Fishman has sought relief in the wrong jurisdiction. Under 28 U.S.C. § 2241(a),

district courts may grant habeas relief only “within their respective jurisdictions.” The Supreme

Court has “interpreted this language to require . . . ‘that the court issuing the writ have

jurisdiction over the custodian,’” Padilla, 542 U.S. at 442 (quoting Braden v. 30th Judicial

Circuit Court of Ky., 410 U.S. 484, 495 (1973)); see also Stokes, 374 F.3d at 1237–38, which is

the warden of the prison in which the petitioner is incarcerated. Because the warden of FCI

Terminal Island is located in San Pedro, California, this Court lacks “territorial jurisdiction” to

adjudicate Fishman’s petition. Day v. Obama, No. 15-671, 2015 WL 2122289, at *1 (D.D.C.

May 1, 2015), aff’d sub nom. Day v. Trump, No. 15-5144 (D.C. Cir. June 23, 2017); see also

Lane v. United States, No. 14-731, 2015 WL 6406398 at *2 (D.D.C. Oct. 21, 2015) (explaining

that the territorial-jurisdiction requirement is like personal jurisdiction or venue). The Court

will, accordingly, transfer Fishman’s claims with respect to his release from “unlawful

detention,” Dkt. 1 at 12, to the U.S. District Court for the Central District of California.

       A separate order will issue.


                                                       /s/ Randolph D. Moss
                                                       RANDOLPH D. MOSS
                                                       United States District Judge


Date: April 19, 2018




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