Appellee's Response to Appellant's Motion to Stay Further Proceedings in the Court of Appeals

    ]N THE

S'IESES @TEf, OF APPEATS

FOR THE

EiEI/E\TITT CSRCI.IIT

MAGGIE S. BOZEMAN,

Petitioner-
Appe1Iee,

vs.

EAION II1. LAIVIBERT,
et 81.,
Respondents-APPeI lants .

No.84-7286

APPELLEE' S RESPONSE TO APPELI"ANT I S
}IOTION TO STAY FURTHER PROCEEDINGS

IN TIIE COURT OF APPEALS

Appellee ltqggie S. Bozeman hereby notifies this Honorable

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

respondentsr Motion for Relief from Judgment. A copy of said

order and memorandum opinion are attached. AIso attached is a

copy of petitioner's Amendment to Petition NuncPro Tunc, submitted

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

JuIy 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 court's Order of July 13, 1984,

and petitioner/appellee's nulc pro tunc amendment. Appellee further

requests that this case be promptly calendered for briefing,



considerati-on and decision in this Court.

iffiI'3,;fiHH',*'
99 Hudson Street
16th Floor
New York, N.Y. 10013
l2t2) 2L9-1900

VANZETTA PENN DURANT
539 Martha Street
Montgom€ry, Alabama 36104

Attorneys for Petitioner-
Appellee

Certificate of Service

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

of the foregoi.ng Appellee's Response to Appellantrs Motion

to Stay Further Proceedj-ngs in the Court of Appeals upon:

p. lil. Johnston, Esq.
Attorney Generalts Annex
669 South Lawrence Street
Montgom€ry, Alabama 36104

via United States mai1, postage prepaid.

This 18th day of Ju1y, 1984.

Lani Guini-er
Attorney for Petitioner-

Appellee

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IN THE T,NITED STATES DISTRICT COURT
FOR T}IE }TIDDLE DISTRICT OF AI.ABAMA

NORTHERN DIVISION

FILED
JUL 1 3 884

THOMASffiveR, CLER

E=ff
MAGGIE S. BOZEMAN

Petitioner
vs.

EALON M. I.AMBERT;
et al

) crvri, AcrroN No. 83-H-579-N

)

)

)

)

ORDER

Respondents

In accordance with the attached memoranduro opinion,

it is hereby

ORDERED that respondents' rnotion 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 prison from which she

was paroled.

DONE this 13th day of JulY , L984.

-// ,zr. /r1/-
I]NITED STATES DISTRICT JIIDGE



IN THE I'NITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF AI.ABAMA
NORTHERN DIVISION

)

)
CIVIL ACTION

)

)

)

)
CIVIL ACTION

)

)

FILED
JUL 1 3 884

]1.-^rWEffi- DEruTY CLERK

NO. 83-H-579-N

MAGGIE S. BOZEMAN
Petitioner

vs.

EALON M. LAI{BERT ; et aI
ResPondents

JI'LIA P. WILDER
Petitioner

v8.

EAIIN M. LAXBERT; €E aI
ResPondeots

N0. 83-H-580-N

MEMORANDI'M 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, L984, 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 judgrnents 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 judganents, and ask

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

cn



As an initial matter, it aPPears that this court has

jurisdiction to consider these Rule 60 (b) motions despite

thefactthatthesecasesarecurrentlyonappeal.rn
Parrottv.Wilson,7o7F.2d1252(IIthCir.),cert.

9g!g!, 
-U.S.- 

(1983)' the court stated' "W€ have

recognized the discretionary power of a district court to

consider [a Rule 60 (b) ] motion even after an appeal has been

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

Abrasives Co-, 542 F.2d g28,930 (sth Cir' 1976); Ferrell v'

Trailmobile, Inc.r 223 P.2d 697, 598-99 (5th cir' 1955))'

The Court agrees with respondents that a ProPer

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

application for a writ of habeas corPus "shaIl aIIege" 'the

name of the person who has custody over" the applicant'

Unders2243,''[t]hewrittotordertoshowcauselwhythe
writ should not be grantecl shall be directec to the Person

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

371u.s.236,24L-42(1963),theSupremeCourtdetermined
tlrc prolrcr cuatodian by reference to state Iaw. Under

Alabama law, a prisoner on parole remains "in the legal

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 fu11y pardoned. " A1a. Code

s1s-22-26.

The Court nevertheless SeeS Some merit in petitioners'

contention that they have named the ProPer respondents. The

-2



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

parole...agency..t 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 A1a. 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 a1low 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

priron fron vhlch thcy uerc paroled, the Court believes that

rrrpondcntt lrG ProPGr Prrtlc! ag uel'I'

The court diragreeE uith respondents' contention that

petitioner8 tDly not amend their Petitions to add the warden

as respondent. In tfest v. Louisiana , 47 8 F.2d 1025 (5th

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

(1975), the court held that " [fJailure to name a ProPer

respondent is a procedural rather than a jurisdictional

defect, and it may be corrected by amendment of the

-3



petition. " !]. at LOzg. The court affirmed the district

court's grant of habeas relief on the condition that

petitioner amend his petition. Id. at 1031. Respondents

argue that this reasonj.ng vras 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'

id. at 1029-31. The court could rely on these grounds'

however, only if the defect was procedural rather than

Jurledletlonal.Seel'd.at1031(.Weareunwilllngto
disregard a violation of petitioner's constitutional rights

soIely becauSe he has tripped on a procedural hurdle" " ") '

Excusable neglect would not cure a jurisdi'ctional defect'

The court rejects respondentsr argument that it will

lack 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

alEo were in custody there, although it is tict clear from

therecordwhetherthisargumentiscorrect.Section

2241@) is a venue statute, however, and not a

jurisdictional restriction. United States eI re1' Sero v'

Preiser, 505 F.2d 1115, L!28 (2d Cir. L974), cert. denied,

421 U.S. g2]- (1975); 17 Wright, I"li1ler & cooPer s 4258, at

697-98(1978).Respondentsclearlyhavewaivedany

objection to the venue of this action'

See

-4



Requiring petitioners here to amend their petitions

would not only comport with the 1aw of this circuit, it

would be the most sensible soLution. "There is no point in

treating the defect as jurisdictional. Dismissal of the

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

petition naming the Proper respondents." L7 Wright, ltliller

& Cooper S 4268, at 696 n.18 (1978). Petitioners "wou}d

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

Judiciary would once more have to consider ItheirJ case Is] .

The resul-t would only be to delay granting the relief to

which" they are entitled- West, 478 F.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 high1y 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 lt in Ltre beet position to inform the Court as to

tDr proprr P.rt,lat retPondent. ?hc Attorney General did not

tuggiat tlrrt ghc naocd respondents rrere not the ProPer

partict utttil rfter Petitioners had largely Prevailed on

their petitions. On the contrary, in these cases the

Attorney General admitted in his answers that the named

respondents were the proper parties. The Court is also

impressed that the named respondents are more likety than

the warden to be able to provide the relief petitioners

-5



seek. Thus, the Court will deny respondents' motions

condition that petitioners amend their petitions to

appropriate warden as a party respondent.

on the

add the

Separate orders will be entered in accordance with this

memorand,um opinion.

DONE this 13th daY of JulY, 1984.

I.INITED STATES DISTRICT JI.'DGE