Appellee's Response to Appellant's Motion to Stay Further Proceedings in the Court of Appeals; Order; Memorandum Opinion

    ]N THE

S'IAEES @URI OF APPEATS

EOR TTIE

E.;E\IENTIT CXRCUIT

MAGGIE S. BOZEMAN,

Petitioner-
Appe11ee,

vs.

EAION M. LAIVIBERT,
et 41.,
Respondents-APPeI lants .

No.84-7286

APPELLEE I S RESPONSE TO APPELLANTI S

MOTION TO STAY FURTHER PROCEEDINGS
IN TIM COURT OF APPEALS

Appe]Iee Mqggie S. Bozeman hereby notifies this Honorable

Court that on July 13, 1984 the district court denied appellants-

respondents' Motion for Relief from Judgment. A copy of said

order and memorandum opinion are attached. Also attached is a

copy of petitioner's Amendment to Petition Nunc Pro Tunc, submitted

on July 18, 1984 for filing in the district court pursuant to the

July 13, 1984 District Court Order. Appellee respectfully moves

this Court to deny. appellant's motion to stay further proceedings

in the Court of Appeals in that the asserted basis for the motion

has been made moot by the district courtrs Order of July 13, L984,

and petitj-oner/appe11ee's nunc pro tunc amendment. Appellee further

requests that this case be promptly calendered for briefing,



consideration and decision in this Court.

iffi+':,;fiHH"*'
99 Hudson Street
I6th Floor
New York, N.Y. 10013
l2t2l 219-1900

VE}IZETTA PENN DURANT
639 Martha Street
Montgom€Ey, Alabama 36104

Attorneys for Petitioner-
Appellee

Certificate of Service

This is to certify that I have this day served a coPy

of the foregoing Appellee's Response to Appellantrs Motion

to Stay Further Proceedings in the Court of Appeals uPons

P. M. Johnston, Esq.
Attorney General's Annex
669 South Lawrence Street
Montgomery, Alabama 35I04

via United States mail, postage prepaj-d,.

This ISth day of July, L984.

Lani Guinier
Attorney for Petitioner-

Appellee

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oo FILED
JUL 1 3 884

MAGGIE S. BOZEMAN

Pet it ioner CIVIL ACTION NO. 83-H- 5 79 -N

vs.

EALON M. I.AMBERT;
et aI

RespondenEs

ORDER

In accordance with the attached uemorandr1a opinion,

iE is herebY

ORDERED Ehat respondents' notion for relief from

judgment is denied. Petitioner is ORDERED to arnend her

petition, within twenty days of the date of this order, to

name as respondent the warden of the Drison from which she

was paroied.

DONE this 13th day of Jul-Y , L984.

I a. ,/r//,-
UNITED STATES DISTRICT JIIDGE

IN THE T'NITED STATES DISTRICT COURT
FOR THE }IIDDLE DISTRICT OF AI.ABAMA

NORTI{ERN DIVISION



oo FILED
JUL 13 884

IN TTIE
FOR THE

MAGGIE S. BOZEMAN
Petitioner

vs.

EALON M. I*AI{BERT; et aI
Respondents

JI'LIA P. WILDER
Petitioner

v8.

EAIIN U. IAMBERT; et aI
ResPondents

I,]NITED STATES DISTRICT COURT

MIDDLE DISTRICT OF AT ABA]{\
NORIT{ERN DIVISION

)

)
CIVIL ACTION

)

)

)

)
CIVIL ACTION

)

)

llr-^rw:-,*
DEruTY CLERK

N0. 83-H-579-N

N0. 83-H-580-N

MEMOMNDTIM OPINION

These actions are before the court on respondents'

motions for relief from judgment. The issues presented in

the two cases are identical. On April 13, 1984, the Court

entered judgments in favor of petitioners. On June 11,

1984, respondents moved under Fed. Rule Civ. Proc. 60(b) for

relief from these judgments on the ground that petitioners

have named the wrong respondents. One of respondents is a

parole officer, and the other three are the members of the

Alabama Board of Pardons and Paroles. Respondents claim

that petitioners should have named the warden of the prison

from which they were paroled. Respondents also argue that

their motion is not barred by its tardiness because this

Court lacked jurisdiction to enter the judgirnents, and ask

the Court to vacate those judgrrnents. The Court will not do

so.



As an initial matter, it aPPears that this Court has

jurisdiction to consider these RuIe 50 (b) motions despite

thefactthatthesecasesarecurrent,lyonappeal.rn
Parrottv.Wilson,7o7F.2d1262(IIthcir.),cert.

9"ni.d,-U.S.-(1983),thecourtstated,''W€have
recognized the discretionary power of a district court to

consider [a RuIe 60 (b) J motion even after an appeal has been

noticed.. Id. at L266-67 n.8 (citing Lairsey v. Advance

Abrasives Ce-., 542 F.2d g28, 930 (sth Cir' L9761 i Ferrell v'

Trailmobile, Inc. , 223 P'2d 697' 698-99 (5th Cir' 1955))'

TheCourtagreeswithrespondentsthataProPer
respondent is the warden of the prison from which

petitioners were paroled' Under 28 U'S'C' S 2242' an

application for a writ of habeas corPus "shaII a11e9e" 'the

nameofthepersonwhohascustodyover''theaPPlicant.
Under52243,"[t]hewritrolordertoshowcause[whythe
writ should not be grantedl shaIl be directed to the Person

having custody of the" applicant. In Jones v. cunningham,

371 U.S. 236, 241-42 (1963), the Supreme Court d'etermined

tlrc propcr curtodian by reference to state law. Under

Alabama law, a prisoner on parole remains "in the 1e9a1

custody of the warden of the prison from which he is paroled

until the expiration of the maximum term specified in his

sentence or until he is fuIIy pardoned. " Ala. Code

s1s-22-26.

The Court nevertheless Sees some merit in Petitioners'

contention that they have named the ProPer respondents. The

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oo
Advisory Committee Note,to Rule 2 of the rules governing 28

u.s.c. s 2254 proceedings states that, where the applicant

is on parole, " [t]he named respondents shall be the

particular...parole officer resPonsible for supervising the

applicant, and the official in charge of the

paro}e...agency.'ir This Procedure is sensible in this case,

because the parole board is best situated to provide

petitioners with the relief they desire. Neither petitioner

is incarcerated, and thus they seek essentially to have

their records cleared. under Alabama Iaw, this aPPears to

be a function of the parole board and not the prison

wardens. See AIa- Code S 15-22-36 (a)-(c) ' Furthermore' the

habeas rules clearly contemplate a more flexible procedure

than do respondents. The Note to Rule 2 states that "the

judge may require or allow the petitioner to join an

additional or different party as a respondent if to do so

would serve the ends of justice." Thus, although

petitioners technically should have named the warden of the

prlron frorn vhlch they uere paroled, tJte Court believes that

rorpondcntt lrG ProPGr PrrtlQs ag veJI'

The court disagrees uith respondents' contention that

petitioners Dly not amend their petitions to add the warden

as respondent. In West v. Louisiana, 478 F.2d 1025 (5th

Cir. 1973), aff'd en banc in Pertinent Part, 510 F'2d 353

(1975), the court held that "[f]ailure to name a ProPer

respondent is a procedural rather than a jurisdictional

defect, and it may be corrected by amendment of the

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oo
petition.,, Id. at 1029. The court affirmed the district

court's grant of habeas relief on the condition that

petitioner amend his petition. Id. at I031. Respondents

argue that this reasoning uras dicta, and that the real basis

for the Fifth circuit's decision was the fact that

petitioner Proceeded pro se and used a misleading f.orm' See

id. at IO29-31. The court could rely on these grounds'

however, only if the defect was procedural rather than

Jurlsdlctl.onal.See&at1031(.i{eareunwilllngto
disregard a violation of petitioner's constitutional rights

soleIy because he has tripped on a procedural hurdIe" " ") '

Excusable neglect would not cure a jurisdictional defect'

The court rejects respondents' argument that it will

Iack territorial jurisdiction if petitioners amend their

petitions. under 28 U.S,C. S 2241(d) , an application for

habeas relief should be filed in the district in which the

applicant is in custody or in which the aPPlicant was

convicted. Petitioners were convicted within the Northern

District of Alabama, and respondents argue that petitioners

also rrere in custody there, although it is trct clear from

therecordwhetherthisargumentiscorrect.Section
2241@) is a venue statute, however, and not a

jurisdictional restriction. united states eI re1. Sero v'

Preiser, 505 r.2d 1115, Ll28 (2d Cir. 1974), cert. denied,

42t U.S. 92L (1975); 17 Wright, t'liller & CooPer s 4258, at

697-g8(1978).Respondentsclearlyhavewaivedany

objection to the venue of this action'

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oo
Requiring petitioners here to amend their petitions

would not only comPort with the law of this circuit, it

broul-d be the most sensible sol'ution. "There is no point in

treating the defect as jurisdictional. Dismissal of the

petition erould not be on the merits and would not bar a new

petition naming the ProPer respondents.r' L7 Wright, lttiller

& cooper s 4268, at 696 n.18 (1978). Petitioners "would

once more have to labor uP the judicial ladder, and ttre

Judiciary would once more have to consider [their] case Isl .

The result would only be to delay granting the relief to

which" they are entitled. West, 478 P.2d at 1030'

Furthermore, although petitioners here do not proceed Pro

s€r this case is similar to West in that the defect here was

both understandable and highly technical, as illustrated by

the fact that no attorney on either side raised the issue

until now. The Advisory Committee Note to Habeas Rule 2

indicates without qualification that respondents are the

proper parties. Moreover, said note States that the Attorney

Gcncrel 1r in ttre begt position to inform the Court as to

tbt proprr P.rt,tat rcrpondent. Ihe Attorney GeneraL did not

tuggatt tlrrt thc namd respondents were not the ProPer

partier until rfter Petitioners had largely Prevailed on

t}eir petitions. On the contraryr in these cases the

Attorney General admitted in his answers that the nameC

respondents hrere the ProPer parties. The Court is also

impressed that the named respondents are more 1ikely than

the warden to be able to provide the rel-ief petitioners

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oo
seek. Thus, the Court will deny respondents' motions on the

condition that petitioners amend their petitions to add the

appropriate warden as a party resPondent.

Separate orders will be entered in accordance with this

memorandum oPinion.

DONE this 13th daY of Ju1Y, 1984-

I,'NIIED STATES DIS?RICT JI.'DGE

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