V. PARTIES AND JURISDICTION
A. Forum
“The 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.” Braden
v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484,
93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). 28 U.S.C. §
2241(a) provides that a writ of habeas corpus can be
issued “by the Supreme Court, any justice thereof, the
district courts and any circuit judge within their
respective jurisdictions.” “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, or requiring that he be released
outright from custody, even if the prisoner himself is
confined outside the court’s territorial jurisdiction.” Id.
at 495, 93 S.Ct. at 1130. When a petitioner in held in
one state and attacks a detainer lodged against him by
another state, the state “holding the prisoner in
immediate confinement acts as agent for the demanding
State, and the custodian State is presumably indifferent
to the resolution of the prisoner’s attack on the detainer.”
Here, the petitioner, confined in Alabama, but
challenging a Kentucky indictment, properly filed in the
district court in Kentucky. The Braden Court said: “We
cannot assume that Congress intended to require the
Commonwealth of Kentucky to defend its action in a
distant State and to preclude the resolution of the dispute
by a federal judge familiar with the laws and practices of
Kentucky.” The Court did recognize that the district
court in the place of confinement could exercise
concurrent jurisdiction over a habeas petition. Because
that forum is not ordinarily as convenient as would be the
district court in the state lodging the detainer, however,
the court can transfer the suit to a more convenient
forum, pursuant to 28 U.S.C. § 1404(a).
B. Proper Respondent
28 U.S.C. § 2242 states that a habeas petition must
allege “the name of the person who has custody over” the
petitioner “and by virtue of what claim or authority, if
known.” This same statutory section provides that the
writ, if issued, or the order to show cause why the writ
should not be granted, must be “directed to the person
having custody of the person detained.” The
appropriately named respondent for applicants presently
in custody pursuant to the challenged state judgment is
“the state officer having custody of the applicant,”
whereas the proper respondents in cases where the
petitioner is not currently in custody pursuant to the
state court judgment but may be subject to such custody
in the future are “the officer having present custody of the
applicant and the attorney general of the state in which
the judgment which [the petitioner] seeks to attack was
entered....” R. 2(a) and R. 2(b), Rules Governing Section
2254 Cases in the United States District Courts, 28
U.S.C. foll. § 2254 (Rules Governing Section 2254
Cases); Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443.In Barry v. Bergen County Probation Department, 128
F.3d 152 (3d Cir. 1997), cert. denied, 522 U.S. 1136,
118 S.Ct. 1097, 140 L.Ed.2d 152 (1998), petitioner
properly named the Attorney General of New Jersey and
the Bergen County Probation Department as
respondents where that department retained jurisdiction
over the petitioner notwithstanding that over a year
before the petition was filed, petitioner’s community
service requirement had been transferred from Bergen
County to the Morris County Probation Community
Service Program.Urrutia v. Harrisburg County Police Department, 91
F.3d 451 (3d Cir. 1996), held an assistant district
attorney not proper respondent for habeas petition.Yi v. Maugans, 24 F.3d 500 (3d Cir. 1994). Warden
of facility or prison where detainee is held is the proper
respondent; the warden has “day-to-day control over the
prisoner” and “can produce the actual body.”Paydon v. Hawk, 960 F. Supp. 867 (D.N.J. 1997).
Where habeas petitioner improperly named the director
of the Bureau of Prisons as respondent, the district court
substituted the name of the warden where petitioner was
housed.In DeSousa v. Abrams, 467 F. Supp. 511 (E.D.N.Y.
1979), habeas petitioner named only the Attorney
General as respondent. While acknowledging that a
failure to name the proper respondent is fatal to a habeas
petition, in that the federal court is without jurisdiction
to consider the action, the district court gave petitioner
leave to amend his petition to name the proper
respondent, the superintendent of the confining
institution who, in any event, was represented by the
Attorney General.Dunlap v. 230th District Court, Harris County,
Houston, Texas, 701 F. Supp. 752 (D. Nev. 1988).