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Pennington v. Ask-Carlson

United States District Court, S.D. Illinois

February 27, 2014

ROBERT PENNINGTON, SR., Petitioner,
v.
K. ASK-CARLSON, Respondent.

MEMORANDUM and ORDER

DAVID R. HERNDON, District Judge.

Through counsel, Robert Pennington, Sr., filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, (Doc. 1). In April, 2000, he pled guilty to a charge of conspiracy to manufacture methamphetamine in the Southern District of Illinois. He was sentenced to 262 months imprisonment in February, 2001. U.S. v. Pennington, 4:00-cr-40013-JPG, Docs. 25 & 183.

Petitioner argues that he is entitled to habeas relief because he received ineffective assistance of counsel and the court erred in not allowing him to withdraw his guilty plea. Respondent argues that Pennington is precluded from bringing a § 2241 petition.

I. Jurisdiction, Venue, and the Proper Respondent

The petition reflects that Pennington was confined at FCI Pollock, in Pollock, Louisiana, and names the United States of America as the respondent. According to the BOP's website, http://www.bop.gov/inmateloc/, Pennington is still confined at FCI Pollock.

In its order on threshold review, the Court advised petitioner that the United States was not a proper party and that, pursuant to 28 U.S.C. § 2243, the petition should be "directed to the person having custody of the person detained." The Court ordered petitioner to amend his petition to name the correct respondent within twenty-one days (Doc. 2). However, petitioner did not do so.

Notwithstanding petitioner's failure to name the correct respondent, the United States Attorney entered an appearance on behalf of K. Ask-Carlson, Warden of FCI Pollock, and filed a response to the petition. Docs. 5 & 6.

This petition should have been filed in the Western District of Louisiana, where Pennington was confined at the time the petition was filed, and should have named K. Ask-Carlton as respondent. However, these errors do not divest the Court of subject-matter jurisdiction. This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331; section 2241 deals with remedies and is not a jurisdictional clause. Harris v. Warden, 425 F.3d 386, 388 (7th Cir. 2005).

The United States Attorney filed a response on behalf of Warden Ask-Carlton without raising personal jurisdiction or venue. "[T]he identity of the custodian and the location of the litigation concern venue and personal jurisdiction, rather than subject-matter jurisdiction, and hence may be waived or forfeited by the respondent." Id. (citing Moore v. Olson, 368 F.3d 757 (7th Cir. 2004)). The issues of personal jurisdiction and venue having been waived, the Court will consider the merits of the petition.

K. Ask-Carlton is ordered substituted as respondent herein.

II. Relevant Facts and Procedural History

Petitioner did not file a direct appeal. In February, 2002, he filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 in this district. Pennington v. U.S.A., 4:02-4038-JPG. He alleged that his indictment was defective because it did not specify the drug quantity; therefore, his guilty plea was invalid, and the waiver of right to file an appeal and post-conviction remedy contained in his plea agreement was void. He also alleged that his counsel was ineffective in advising him to plead guilty to a defective indictment, failing to investigate and prepare for trial, failing to discuss plea negotiations and the terms of the plea agreement with petitioner, and in advising him to sign a plea agreement that was wholly favorable to the government. The motion was denied on substantive grounds. Pennington v. U.S.A., 4:02-4038-JPG, Doc. 7. Pennington did not appeal.

The instant petition raises the following issues:

1. Counsel was ineffective in failing to file a motion to suppress a videotape and his statement, advising Pennington to agree to waive his right to appeal without advising him of his rights, failing to spend adequate time investigating and advising Pennington, ...

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