Free Motion to Transfer Case - District Court of Delaware - Delaware

Case 1 :08-cv—00432-GIVIS Document 7 Filed 08/07/2008 Page 1 of 4
Burl Anderson Howell
207 Dobbs Drive
LaGrange, NC 28551 Movant, Pro Se
302-229-8888
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
Burl Anderson Howell, )
)
Movant ) Habeas Civil No. 1:08-CV-432-GMS
)
v. ) originally transferred from:
) Civil Action No. 5:08—HC-2036-FL
State of Delaware, ) in the U.S. Dist. Ct. For the Eastem
) Dist. Of North Carolina, West. Div.
Respondent )
MOTION FOR TRANSFER OF CASE TO MORE CONVENIENT FORUM
Movant, Burl Anderson Howell (hereinaiter "Movant"), pro se, hereby pursuant to 28
U.S.C. § 1404(a) and 224l(d), moves in a special appearance to contest jurisdiction before any
respondent is served, to transfer his habeas action to a more convenient forum for prosecution.
1. Movant’s original motion for a writ of comm nobis was filed on March 12, 2008 in
the United States District Court for the Eastem District of North Carolina, Western Division.
2. Movant’s original motion was amended to include a habeas petition, was sua sponte
transferred to this court, and filed here on July 23, 2008.
3. Chief Judge Louise W. Flanagan entered her Order transferring the above-captioned
action to this court on July 10, 2008 tmder Braden v. 30“‘ Judicial Circuit Court, 410 U.S. 484,
494-500 (1973)(According to Judge Flanagan, "[a] § 2254 petition must be tiled in the judicial
district which can acquire in personam jurisdiction of a petitioner’s custodian} . A j __ A
..1- . . . 7
(
Aus —- v 2000 Jim"
i U.S. DISTRICT COURT
DIS RICTOF DELAWARE ,

Case 1 :08-cv—00432-GIVIS Document 7 Filed 08/07/2008 Page 2 of 4
4. The Movant applied for a certificate of appealability of said Order on July 15, 2008 to
the Fourth Judicial Circuit Court of Appeals challenging Judge F1anagan’s discretion to transfer
a habeas action pursuant to Braden v. 30"’ Judicial Circuit Court, 410 U.S. 484 (1973) when the
dicta of gag, supra, at 497, gives such petitioner the "option of seeking habeas corpus relief
either in the district where he is conhned or the district where the sentencing court is located[,]”
reserving the question "whether, if no detainer had been issued against him, petitioner would be
sufficiently ‘in custody’ to attack [a capias alone] by an action in habeas corpus[,]" id., at 489,
fn. 4, and limiting the discretion to transfer such suit to the ordinary case of a "State which has
lodged the detainer." Id., at 499, fh. 15; see, Maleng v. Cook, 490 U.S. 488 (l989)(The placing
of a detainer is sufficient to put a habeas applicant "in custody" for habeas purposes, which one
might reasonably presume may include the transfer of a habeas petition to a district court whose
territorial jurisdiction geographically encompasses the state court of conviction for obtaining in
personam jurisdiction over it.); cf Ahrens v. Clark, 335 U.S. 188, 193 (1948)(Overruled by the
Supreme Court’s decision in _l;1;a_c@i_, supra, but still good law concerning the requirement of a
petitioner being "in custody" which is a restriction that Congress has placed on the power of the
district courts to act in such cases, the absence of which is a jurisdictional defect which may not
be waived and which requires dismissal in cases wherein no detainer has been issued unless the
circumstances of this case in the absence of a detainer constitute a new type of "custody" which
is now "ripe for adjudication." Qrjgzr, p. 1, para. 1, Flanagan, C.J., of Record); compare § ;
v. Munical Court, 411 U.S. 345, 534 (1973)(Concurring Op.)("The Court apparently feels, like
Faust, that it has in its previous decisions already made its bargain with the devil, and it does not
shy from this final step in the rewriting of the statute [28 U.S.C. 224l(c)(3), 2254(a), p. 348].").
-2-

Case 1 :08-cv—00432-GIVIS Document 7 Filed 08/07/2008 Page 3 of 4
5. This “option" is possible because in personam jurisdiction over a nominal custodian is
available in both districts, one whose geographical territory includes the state court of conviction
and the other in which the nominal custodian is merely "present." Strait v. Laird, 406 U.S. 341,
345 (1972).
6. Here, no detainer was issued in North Carolina against the Movant so no in personam
jurisdiction over the nominal custodian will be possible by transfer to the U. S. District Court for
the District of Delaware on that basis. See, _B__ra@, at 499, fn. 15; see also, g, supra.
7. Instead, the nominal custodian "en1isted the aid," gra; at 344, of the Social Security
Administration (SSA) as a law enforcement agency under the Social Security Protection Act of
2004, P.L. 108-203, that prohibits benefit payments to fugitive felons under the SSDI program
which went into effect on January 1, 2005, see, The CRS Report RL32089, The Social Security
Protection Act of 2004 (HR. 743), imposing an obligation on the Movant to appear before said
court regarding its outstanding warrant against him, rendering such nominal custodian "present"
by its agent (SSA) within the territory of a North Carolina District Court and thus "amenable to
process." Strait v. Laird, 406 U.S. 341, 345, fit. 2 (1972); see, Rules Governing Section 2254
Cases in the U.S. District Court, Rule 4(Process “shall be served by certified mail.”).
8. "Under 28 U.S.C. § 1404(a), a federal district cotut in which a civil action has been
brought is not empowered to transfer the action on the motion of the defendant [or, sua sponte]
to a district in which the plaintiff did not have a right to bring it, ” Hoffman v. Blaski, 363 U.S.
335, 335-344 (1960), but, “[w]herever one is assailed in his person or his property, there he may
defend, for the liability and the right are inseparable,” Hovey v. Elliott, 167 U.S. 409, 414 1897),
because, "[a] proceeding by habeas corpus in a court of competent jurisdiction is appropriate for
-3-

Case 1 :08-cv—00432-GIVIS Document 7 Filed 08/07/2008 Page 4 of 4
determining whether the accused is subject, in virtue of the warrant of arrest, to be taken as a
fugitive from the justice of the state in which he is found to the state whose laws he is charged
with violating." People of the State of Illinois Ex Rel McNichols v. Pease, 207 U.S. 100, 109
(1 907).
IN SUM, North Carolina is where Movant was born, lives with his wife, and together
they own real property, personal property, file tax returns, are licensed and insured to drive a
motor vehicle, received medical care from the Veterans Administration, and food stamps and
social security disability insurance benefits from the state and federal govemments, and if he
must travel five hundred (500) miles to Delaware to present his case he will be forced to incur
impossible financial hardship considering the meager amount of income they receive from the
Social Security Administration; his witnesses are not present in Delaware but live in Maryland
and North Carolina, to wit, his wife and the representatives of the Estate of Kenneth D. Howell
who have swom affidavits in support of his case; however the balance of convenience may be
struck with reference to the question of venue, the choice of forum should be controlled by the
option of the Movant under the Supreme Law of the Land in , supra; whatever response
the State of Delaware may need to file regarding production of records to be served on Movant
by mail in North Carolina must not be permitted to override the Supreme Law of the Land that
invalidated an "inflexible jurisdictional rule, dictating the choice of an inconvenient forum even
in a class of cases which could not have been foreseen at the time of [Ahrens]." , p. 500.
2% . -
Burl Anderson Howell Date:
207 Dobbs Drive
LaGrange, NC 28551
Phone (302) 229-8888
-4-

Case 1:08-cv-00432-GMS

Document 7

Filed 08/07/2008

Page 1 of 4

Case 1:08-cv-00432-GMS

Document 7

Filed 08/07/2008

Page 2 of 4

Case 1:08-cv-00432-GMS

Document 7

Filed 08/07/2008

Page 3 of 4

Case 1:08-cv-00432-GMS

Document 7

Filed 08/07/2008

Page 4 of 4