                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

                                              )
KENNETH MAXWELL,                              )
                                              )
               Petitioner,                    )
                                              )
       v.                                     )       Civil Action No. 10-1613 (RMC)
                                              )
HARLEY LAPPIN,                                )
                                              )
               Respondent.                    )
                                              )

                                   MEMORANDUM OPINION

               Petitioner, who is in federal custody, commenced this case by filing a purported

petition for a writ of mandamus. Respondent has moved the Court to construe the petition as a

petition for a writ of habeas corpus and to transfer the petition to the district having territorial

jurisdiction over Petitioner’s warden. This motion will be granted, and furthermore, the current

respondent will be dropped and the proper respondent will be added.

               I.      The Court Construes the Petition for a Writ of Mandamus as a
                       Petition for a Writ of Habeas Corpus Brought Under 28 U.S.C. §
                       2241.

               Petitioner is currently imprisoned at United States Penitentiary (USP) McCreary,

where he is allegedly serving a 48-month sentence.             See Pet. for Writ of Mandamus

(“Pet.”)    [Dkt.#    1]     at   1;   Federal    Bureau     of   Prisons,     Inmate     Locator,

http://www.bop.gov/iloc2/LocateInmate.jsp (search for Register No. 31259-054).            Petitioner

proffers no additional details about this sentence. Petitioner further alleges that the United States

District Court for the Southern District of New York sentenced him to an unrelated 41-month

term of imprisonment, which he claims should run concurrently with the 48-month sentence.

Pet. at 2–3. Petitioner invokes 28 U.S.C. § 1361—the statute providing for mandamus relief

against federal officers and employees—and asks the Court to compel the Federal Bureau of
Prisons (BOP) to execute his 41-month sentence concurrently with his 48-month sentence. Pet.

at 1, 4. Respondent argues that the petition should be construed as one for habeas corpus, not

mandamus. Mot. to Transfer (“Mot.”) [Dkt. # 11]. The Court agrees.

               “Mandamus is a drastic remedy to be invoked only in extraordinary

situations . . . .” Chatman-Bey v. Thornburgh, 864 F.2d 804, 806 n.2 (D.C. Cir. 1988) (citing

Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34–35 (1980). Accordingly, the Court of

Appeals for the District of Columbia Circuit has held that where “habeas is an available and

potentially efficacious remedy, it is clear beyond reasonable dispute that mandamus will not

appropriately lie.” Id. at 806. It is well settled that habeas is a potentially efficacious remedy for

challenges to the duration of imprisonment. See id. at 810 n.5; Bayless v. U.S. Parole Comm’n,

No. 94-cv-686, 1996 WL 525325, at *7 (D.D.C. Sept. 11, 1996) (“When a prisoner attacks

the . . . duration of his confinement, the remedy sought is relegated to . . . habeas corpus

relief . . . .”). For federal prisoners challenging the duration of imprisonment imposed by a

federal court, habeas relief is available under 28 U.S.C. § 2241. In this case, Petitioner seeks to

have his 41-month federally imposed sentence served concurrently, as opposed to consecutively,

with his current 48-month sentence. Pet. at 4. Petitioner thus challenges the duration of his

confinement and must bring a habeas petition under § 2241. The Court will therefore construe

the petition in this case as a habeas petition brought under § 2241.

               II.     Director Lappin Will Be Dropped and the Proper Respondent Will Be
                       Added.

               Petitioner commenced this action against Harley Lappin, Director of the Federal

Bureau of Prisons. See Pet. at 1. The proper respondent in a habeas case is the person having

custody, i.e. legal control, over the petitioner. 28 U.S.C. § 2243; Rumsfeld v. Padilla, 542 U.S.

426, 439 (2004). For ordinary prisoners, such a custodian is the prisoner’s warden. Chatman-

                                                  2
Bey, 864 F.2d at 811. Richard Ives, not Director Lappin, is Petitioner’s warden. The Federal

Rules of Civil Procedure permit a court to, “on its own, . . . at any time, and on just terms, add or

drop a party.” Fed. R. Civ. P. 21. The Court will therefore drop Director Lappin from this case

and add Warden Ives.

                III.    This Case Will Be Transferred.

                A habeas petition under § 2241 must be filed in the federal court with territorial

jurisdiction over the respondent. See 28 U.S.C. § 2241(a) (providing that “[w]rits of habeas

corpus may be granted by . . . the district courts . . . within their respective jurisdictions”); Stokes

v. U.S. Parole Comm’n, 374 F.3d 1235, 1239 (D.C. Cir. 2004) (“[A] district court may not

entertain a habeas petition involving present physical custody unless the respondent custodian is

within its territorial jurisdiction.”). USP McCreary is located in Pine Knot, Kentucky, which is

within the territorial jurisdiction of the United States District Court for the Eastern District of

Kentucky.       See Federal Bureau of Prisons, USP McCreary Contact Information,

http://www.bop.gov/DataSource/execute/dsFacilityAddressLoc?start=y&facilityCode=mcr (last

visited May 17, 2011) (providing the physical address of USP McCreary); 28 U.S.C. § 97(a)

(providing that the Eastern District of Kentucky includes McCreary County).

                A district court shall transfer a habeas petition to a court with proper territorial

jurisdiction when such transfer is “in the interests of justice.” 28 U.S.C. § 1631; see, e.g., Bailey

v. Fulwood, No. 10-cv-463, 2011 WL 677999, at *5 (D.D.C. Feb. 15, 2011). Such a transfer is

in the interest of justice where, inter alia, “it would be time-consuming and potentially costly”

for a petitioner to refile his petition in the proper court. Stern v. Fed. Bureau of Prisons, 601 F.




                                                   3
Supp. 2d 303, 306–07 (D.D.C. 2009). Because it would be too costly and time-consuming to

make Petitioner refile his petition, the Court will simply transfer it.1

               IV.     Conclusion.

               For the reasons discussed above, the petition will be construed as a petition for a

writ of habeas corpus brought under 28 U.S.C. § 2241, Director Lappin will be dropped, Warden

Ives will be added. Further, the motion to transfer [Dkt. # 11] will be granted and this case will

be transferred to the United States District Court for the Eastern District of Kentucky. A

memorializing Order accompanies this Memorandum Opinion.



Date: May 18, 2011                                                    /s/
                                                       ROSEMARY M. COLLYER
                                                       United States District Judge




       1
          Section 1631 gives federal courts “authority to make a single decision upon concluding
that it lacks jurisdiction—whether to dismiss the case or, ‘in the interest of justice,’ to transfer it
to a court of appeals that has jurisdiction.” Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 803 (1988). In this opinion, the Court has decided not only to transfer this case, but
also to drop Director Lappin and add Warden Ives. This is proper because the Court cannot
conclude that it lacks jurisdiction over this action without first concluding that Director Lappin is
not a proper respondent.
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