United States District Court, W.D. Arkansas, Fayetteville Division
Robert Fortier, Plaintiff, Pro se, Grady, AR.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
HON. ERIN L. SETSER, UNITED STATES MAGISTRATE JUDGE.
Currently before the Court is Petitioner Robert Fortier's pro se Petition filed pursuant to " 28 U.S.C. § 2241 and in the alternative 28 U.S.C. § 2254" (Doc. 1.) Fortier is currently incarcerated in the Cummins Unit of the Arkansas Department of Correction (" ADC"). Fortier states that he was sentenced in federal court on November 8, 2011, and in state court on December 5, 2011, with the sentences ordered by the state court to run concurrently. Fortier asserts that he is not challenging his federal or state convictions or sentences, " but simply the place of incarceration." (Doc. 1 at pg. 1.) Fortier asserts that he should be incarcerated in the Federal Bureau of Prisons (" BOP") and not the ADC. Fortier attaches a copy of an order entered in state court on December 6, 2011, directing that he be released on his own recognizance on the state conviction " into the custody of the U.S. Marshall to serve his federal sentence." (Doc. 1 at pg. 20.)
Fortier's petition is properly construed as seeking relief under 28 U.S.C. § 2241, as he is challenging the execution of his sentences and not the validity of his convictions or sentences. See Matheny v. Morrison, 307 F.3d 709, 711 (8th Cir. 2002). This Court is without jurisdiction over this matter, however, as a § 2241 petition must be filed in either the district where the prisoner is confined (the Eastern District of Arkansas), in the United States District Court for the District of Columbia, or in any district in which the BOP maintains a regional office. See United States v. Chappel, 208 F.3d 1069, 1070 (8th Cir. 2000). Rather than dismissing this action, the undersigned finds and recommends that, in the interests of justice, this action be transferred to the Eastern District of Arkansas pursuant to 28 U.S.C. § 1631.
The parties have fourteen days from receipt of the report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both ...