Gorbey v. Warden of the FTC , 580 F. App'x 682 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 23, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MICHAEL S. GORBEY,
Petitioner - Appellant,
No. 14-6151
v. W.D. Oklahoma
(D.C. No. 5:14-CV-00163-HE)
WARDEN OF THE FEDERAL
TRANSFER CENTER, Oklahoma,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
Petitioner and Appellant, Michael S. Gorbey, proceeding pro se, appeals
the district court’s dismissal of his petition for habeas relief under 28 U.S.C.
§ 2241. He is serving a 254-month sentence for convictions of multiple firearms
and weapons-related offenses. Gorbey v. United States, 54 A.3d 668 (D.C. 2012).
He appealed his convictions and sentence to the District of Columbia Court of
Appeals, which affirmed his convictions in part, and remanded the case back to
the trial court for further proceedings, which resulted in the current sentence.
Among multiple other filings and proceedings, Mr. Gorbey filed the instant
petition, subsequently amended. At the time he filed the petition, Mr. Gorbey
was in the custody of the United States Bureau of Prisons (“BOP”) and
temporarily confined at the Federal Transfer Center in Oklahoma City Oklahoma.
He was transferred in March 2013 to the District of Columbia jail. Mr. Gorbey
avers that he has been assigned by BOP to the United States Penitentiary in
McCreary, Kentucky, and the district court stated that his latest filings, as well as
the BOP inmate locator confirm that fact.
The magistrate judge to whom this matter was referred explained why Mr.
Gorbey’s petition must be dismissed:
“It is well established that jurisdiction attaches on the initial
filing for habeas corpus relief, and it is not destroyed by a transfer of
the petitioner and the accompanying custodial change.” Santillanes
v. U.S. Parole Comm’n, 754 F.2d 887, 888 (10th Cir. 1985). So,
Petitioner’s transfer to USP McCreary did not divest this Court of
jurisdiction over the petition, nor did it destroy the Court’s
jurisdiction over the FTC Warden. But, once Petitioner was
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transferred, the FTC Warden became powerless to effect any relief
this Court might order. . . . And because this Court lacks jurisdiction
over Petitioner’s Kentucky custodian, and thus has no way to enforce
any “effectual relief,” Petitioner’s habeas petition is moot.
Report & Recommendation at 2; R. Vol. 1 at 89 (further citations omitted).
Mr. Gorbey filed objections, which the district court reviewed. The court
adopted the Report & Recommendation, and dismissed the petition. The district
court then denied Mr. Gorbey’s motion to reconsider. This appeal followed.
For substantially the reasons stated by the district court, we AFFIRM the
district court’s dismissal of Mr. Gorbey’s petition and the motion to reconsider.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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