Judd v. Holder et al, No. 4:2010cv00062 - Document 8 (D. Mont. 2010)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 4 in full. Plaintiff's Petition for Writ of Habeas Corpus is DISMISSED as frivolous and a certificate of appealability is DENIED. Motions 2 for Leave to Proceed in forma pauperis, 5 to Certify Actual Innocence, and 6 to Certify Class are DENIED. Signed by Judge Sam E Haddon on 11/2/2010. Mailed to Judd. (TAG, )

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Judd v. Holder et al Doc. 8 i -I' . I ..::: , , 2QiO NJli 2 Rrl 9 33 IN THE UNITED STATES DISTRICT COURT u '" FOR THE DISTRICT OF MONTANA GREAT FALLS DIVISION KEITH RUSSELL JUDD, Petitioner, No. CV­1O­62­GF­SEH vs. ORDER ERIC HOLDER, U.S. Attorney General; HARLEY LAPPIN, Director, Federal Bureau of Prisons; U.S. DEPARTMENT OF JUSTICE; UNITED STATES, Re<pond,n""I On October 6, 20 I 0, United States Magistrate Judge Keith Strong entered his Findings and Recommendation 1 in this matter. Plaintiff moved for a certification of actual innocence 2 on the same date. On October 14,2010, Plaintiff I Document No.4 2 Document No.5 Dockets.Justia.com filed objections to Judge Strong's Findings and Recommendation3 and applied for class action certification 4 under Rule 23 of the Federal Rules of Civil Procedure. A. Findings and Recommendation The Court has fully considered Plaintiffs motion and has reviewed de novo Judge Strong's findings and recommendations. 28 U.S.C. § 636(b)(1). Upon de novo review of the record, I find no error in Judge Strong's Findings and Recommendation and adopt them in full. B. Actual Innocence and Class Certification Judd moved the Court "to determine that he is actually innocent" ofthe charges underlying his conviction in United States v. Judd, No. 7:98­CR00093(1 )­RAJ (W.D. Tex. judgment entered Sept. 29, 1999). Judd refers to the procedural gateway "to avoid the procedural bar for obtaining a Writ of Habeas Corpus," established by Schlup v. Delo, 513 U.S. 298, 316 (1995). Schulp and the other cases that Judd cites concern procedural bars, not jurisdictional ones. Jurisdiction is established by 28 U.S.C. § 2241 (a), which provides that "[wJrits of habeas corpus may be granted by ... the district courts ... within their 1 respective jurisdictions." "In [habeas challenges to present physical confinement 3 Document No. 7 4 Document No.6 2 · .. the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent." Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004). No proper Respondent to Judd's habeas petition is within this Court's jurisdiction. See 28 U.S.c. §§ 106, 124, 132(a), (b). "Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement." Padilla, 542 U.S. at 447. This Court lacks jurisdiction. Transfer to cure want of jurisdiction, 28 U.s.c. § 1651, is not in the interests ofjustice. E.g., Order (doc. 930), Judd, No. 7:98­CR­93 (W.D. Tex. May 13,2010). Judd's petition seeking immunity from future prosecution is frivolous, and because he carmot challenge his conviction or sentence in this Court, no one "may sue or be sued" in this action. Fed. R. Civ. P. 23(a). Judd's motion for class certification is therefore moot. See Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003). ORDERED: 1. Plaintiffs Motion for Leave to Proceed In Forma Pauperis 5 is DENIED. 5 Document No.2 3 2. Plaintiff's Petition for Writ of Habeas Corpus6 is DISMISSED as frivolous. 3. A certificate of appealability is DENIED. 4. Plaintiff's Motion to Certiry Actual Innocence1 is DENIED for lack ofjurisdiction. 5. Plaintiff's Application for Class Action CertificationS is DENIED as 6. The Clerk of Court is directed to enter judgment accordingly. 7. No further motions or petitions will be entertained because the action moot. is frivolous. The case is closed and will not be reopened. DATED this ijlflj., day of November, 2010. 6 Document No. 1 1 Document No.5 8 Document No.6 4 United States District Judge

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