The opinion
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVONTAE MCCALL, ) Case No. 4:23-cv-00196
)
Petitioner, ) Judge J. Philip Calabrese
)
v. ) Magistrate Judge
) Amanda M. Knapp
WARDEN H.L. RAY )
)
Respondent. )
)
OPINION AND ORDER
In Case No. 4:21-cr-00686-3, Petitioner Davontae McCall pleaded guilty to
aiding, abetting, and making false statements during the purchase of a firearm in
violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2). On October 21, 2022, the Court
sentenced Mr. McCall to a Guideline sentence of 18 months imprisonment. (ECF
No. 1-1, PageID #4.) Because the Guideline calculation placed Mr. McCall in Zone C
of the sentencing table, the Court ordered a split sentence. Specifically, the Court
ordered that “the first [nine] months” of the sentence be served in the custody of the
Bureau of Prisons, “followed by [nine] months home detention.” (Id.)
With credit for time served, Mr. McCall’s projected release date was
January 22, 2023. (ECF No. 1-2, PageID #5.) As of the date of this Order—
February 1, 2023—Mr. McCall is still in custody at Hazelton FCI in Bruceton Mills,
West Virginia. Proceeding pro se, Mr. McCall filed a habeas petition under 28 U.S.C.
§ 2241, requesting an order to compel Respondent Warden H.L. Ray to comply with
the Court’s ordered sentence. (ECF No. 1.)
This is not Mr. McCall’s first habeas petition. In Case No. 4:21-cr-00686-3,
Petitioner filed a “motion to compel or writ of mandamus,” which the Court construed
as a petition for habeas relief under 28 U.S.C. § 2241. On January 31, 2023, the Court
transferred that petition to the Northern District of West Virginia given its lack of
jurisdiction.
Mr. McCall’s new petition warrants the same outcome. Section 2241 requires
a district court to have personal jurisdiction over the petitioner’s custodian. Wright
v. United States Bd. of Parole, 557 F.2d 74, 77 (6th Cir. 1977). The custodian is the
individual that can produce the petitioner’s body. Rumsfeld v. Padilla, 542 U.S. 426,
435 (2004). Generally, that is the warden of the petitioner’s prison. See Robinson v.
Morrison, 27 F. App’x 557, 557 (6th Cir. 2001). In this case, Mr. McCall is imprisoned
in Bruceton Mills, West Virginia. Therefore, his custodian, Mr. Ray, is in the
Northern District of West Virginia, and Mr. McCall can only bring his petition there.
Nevertheless, the Court declines to dismiss Defendant’s petition. Under
28 U.S.C. § 1631, a district court shall transfer an action, including a habeas petition,
for which it lacks jurisdiction to the appropriate court “if it is in the interest of justice.”
See, e.g., Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003); Wood v. Brown,
No. 2:20-cv-12576, 2021 WL 2311930, at *6 (E.D. Mich. June 7, 2021). Indeed, a
district court abuses its discretion where it dismisses an action without determining
whether a transfer is in the interests of justice. Jackson v. L&F Martin Landscape,
421 F. App’x 482, 484 (6th Cir. 2009). Here, the interests of justice support a transfer
to the Northern District of West Virginia. Dismissal would cause Mr. McCall
unnecessarily to incur additional expenses and delay the resolution of his petition,
which seeks to effect the sentence imposed. See Roman, 340 F.3d at 329. Accordingly,
the Court ORDERS the Clerk to TRANSFER this action to the Northern District of
West Virginia forthwith.
SO ORDERED.
Dated: February 2, 2023
J.PhilipCalabrese
United States District Judge
Northern District of Ohio