     Case: 11-60700    Document: 00512575946     Page: 1   Date Filed: 03/27/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                   FILED
                                                                 March 27, 2014
                                  No. 11-60700
                                                                 Lyle W. Cayce
                                                                      Clerk
WILLIE J. GRIFFIN, JR.,

                                            Petitioner-Appellant

v.

WARDEN MR. EBBERT,

                                            Respondent-Appellee


                 Appeal from the United States District Court
                   for the Southern District of Mississippi


Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Federal prisoner Willie J. Griffin, Jr. filed this habeas petition, pursuant
to 28 U.S.C. § 2241 in the U.S. District Court for the Middle District of
Pennsylvania, against the warden of the federal prison at which he was confined
within that district. Griffin alleged a denial of due process in his loss of good-
time credits.    Thereafter, Griffin was transferred to FCI Sandstone in
Minnesota. The Pennsylvania federal district court dismissed the petition
without prejudice, holding that it lacked jurisdiction because Griffin’s immediate
custodian was outside the Middle District of Pennsylvania. Griffin appealed,
and the Third Circuit Court of Appeals reversed, Griffin v. Ebbert, No. 09-2058
(3d Cir. Dec. 2, 2009) (unpublished), citing Barden v. Keohane, 921 F.2d 476 n.1
(3d Cir. 1990), as holding that jurisdiction over a habeas petition is determined
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                                  No. 11-60700

when the petition is properly filed. The respondent asked that the case be
transferred to the District of Minnesota because Griffin’s Bureau of Prisons
records were in that state. The Court of Appeals, “in the interests of justice” and
“sound principles of judicial administration,” summarily vacated the district
court’s order and remanded the case with instructions to use its “inherent
judicial power” to transfer the case to the U.S. District Court for the District of
Minnesota, Griffin, No. 09-2058 (citing Alexander v. Comm’r, 825 F.2d 499, 501-
02 (D.C. Cir. 1987) (holding that 28 U.S.C. § 1631 did not revoke the court’s
inherent power to transfer cases over which the court has jurisdiction but not
venue)).
      Pursuant to the Third Circuit’s direction, the district court of
Pennsylvania’s Middle District transferred the case to the U.S. District Court of
the District of Minnesota on August 10, 2010. The case was received and filed
in that district court on August 11, 2010. Several days before that, however, on
August 3, 2010, Griffin was transferred to a federal prison in Marion, Illinois.
Griffin remained there until April 18, 2011, at which time he was transferred to
a federal correctional institution in Yazoo, Mississippi. A U.S. Magistrate Judge
in Minnesota concluded that the U.S. District of Minnesota lacked jurisdiction
and recommended that the case be transferred to the U.S. District Court for the
Southern District of Mississippi, and the district court ordered that the case be
transferred on June 27, 2011. Griffin’s petition and sparse record were filed in
the U.S. District Court for the Southern District of Mississippi on or about June
28, 2011. Before or after this date—the record is unclear when—Griffin was
transferred from Mississippi to a federal prison in another state. On August 4,
2011, the district court in Mississippi concluded that it lacked jurisdiction
because the jurisdiction of the Middle District of Pennsylvania attached upon
Griffin’s filing of his petition while he was confined there, citing Lee v. Wetzel,
244 F.3d 370, 375 n.5 (5th Cir. 2001), and because that jurisdiction was not
destroyed by Griffin’s transfer to another prison, citing McClure v. Hopper, 577

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                                         No. 11-60700

F.2d 938, 939-40 (5th Cir. 1978). For these reasons, the Mississippi federal
district court dismissed Griffin’s civil action without prejudice.                          Griffin
appealed.1
       We vacate the district court’s dismissal order and transfer Griffin’s case
back to the U.S. District Court for the Middle District of Pennsylvania. Griffin
stated a claim upon which relief can be granted, and that court is the proper
forum. Although we doubt that the government played forum games or kept
moving Griffin so that his filing could not catch up,2 the result is the same as if
that had been the case. Griffin’s claim should not be delayed any further.
       When Griffin filed his petition, he was incarcerated in a federal prison
within the Middle District of Pennsylvania. He filed his petition in the district
court of that district and named as respondent the warden of the institution in
which he was imprisoned. These steps properly complied with habeas procedure.
See Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). Jurisdiction attached on
that initial filing for habeas corpus relief, and it was not destroyed by the
transfer of petitioner and accompanying custodial change. E.g., McClure, 577
F.2d at 939-40; accord, e.g., Smith v. Campbell, 450 F.2d 829, 832 (9th Cir.



       1
          Since the district court for the Southern District of Mississippi issued its decision,
Griffin has been moved at least three more times: once to a Federal Prison Camp in Yankton,
South Dakota, and again to the Federal Correctional Institution in Big Spring, Texas, and
then to the Federal Correctional Institution in Oakdale, Louisiana—facts of which we may
take judicial notice. See FED. R. EVID. 201(b)(2); Camarillo v. United States, 497 F. App’x 422,
422-23 (5th Cir. 2012) (per curiam) (judicial notice of Bureau of Prisons’ public Inmate Locator
Service) (collecting cases); see also Lee, 244 F.3d at 375 n.5 (“[S]ince his notice of appeal to this
court, Lee has been transferred to a halfway house located in the Eastern District.”). We also
note that the government did not apply for permission to transfer Griffin among federal
facilities while his appeal was pending in this Court as required by Federal Rule of Appellate
Procedure 23(a).
       2
         See Rumsfeld v. Padilla, 542 U.S. 426, 454 (2004) (Kennedy, J., concurring); see also
Eisel v. Sec’y of the Army, 477 F.2d 1251, 1258 (D.C. Cir. 1973) (“To help prevent the
Kafkaesque specter of supplicants wandering endlessly from one jurisdiction to another in
search of a proper forum, only to find that it lies elsewhere, we think it proper to carry our
reasoning to its ultimate conclusion and determine where we believe the proper forum to be.”)
(citing FRANZ KAFKA, THE TRIAL 268-78 (Knopf 1937)).

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1971); Harris v. Ciccone, 417 F.2d 479, 480 n.1 (8th Cir. 1969); Bishop v. Med.
Superintendent, 377 F.2d 467, 468 (6th Cir. 1967); see Padilla, 542 U.S. at 441;
Jones v. Cunningham, 371 U.S. 236, 243-44 (1963); Lee, 244 F.3d at 375 n.5;
Santillanes v. U.S. Parole Comm’n, 754 F.2d 887, 888 (10th Cir. 1985); cf. Shute
v. Texas, 117 F.3d 233, 237 n.2 (5th Cir. 1997) (“Even aside from the fact that the
state is a respondent in this action and was served with process, the state cannot
defeat federal habeas review merely by unilaterally transferring the prisoner to
the custody of another state actor.”) (citing Schultz v. United States, 373 F.2d
524, 524 (5th Cir. 1967), and FED. R. APP. P. 23(a)); Ex parte Catanzaro, 138 F.2d
100, 101 (3d Cir. 1943) (“[W]e do not believe that passing about of the body of a
prisoner from one custodian to another after a writ of habeas corpus has been
applied for can defeat the jurisdiction of the Court to grant or refuse the writ on
the merits of the application.”).
      For these reasons, this habeas petition and civil action are transferred
back to the U.S. District Court for the Middle District of Pennsylvania, see 28
U.S.C. §§ 1631, 2241(b), either for expeditious hearing on the merits or for
approval of Griffin’s transfer of custody to an appropriate custodian and
substitution of that custodian as a party, cf. FED. R. APP. P. 23(a).




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