Wilder v. Lambert Order; Bozeman v. Lambert and Wilder v. Lambert Memorandum Opinion

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IN THE IJNITEq STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF AI,ABAMA

CIVIL ACTION NO. 83-H.580.N

FILED
JUL 13 t984

JXrr^rGryffi
DEPUTY CLERK

t.

JI'LIA P. I^IILDER

Petitioner

NORTHERN DIVISION

)

)

)

)

)

)

ORDER

vs.

EAIPN
eE al

M. I.AMBERT;

Reepondente j
I{
Ir,,
.:

In accordance with the attached memorandr:m opinion,

ir is herebY

oRDERED that respondents' motion for relief from

judgment is denied. Petitioner is oRDERED to amend her

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

name as respondgnt Ehe warden of the prison fron which she

was paroled.

DONE this 13th day of JulY, 1984.

I'NITED STATES DISTRICT JIIDGE



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IN THE IJNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF AT.ABA]'!{

NORTI{ERN DIVISION

v8.

EALON M. LAMBERT; et al
Respondents

CIVIL ACTION NO. 83-H.580-N

ME}{ORANDT'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 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 judgrments, and ask

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

so.

JUL 1 3 t984

THOMAS SS1en, cLexn-ffi
CIVIL ACTION NO. 83-H-579-N

FILED

MAGGIE S. BOZEMAN
Petitioner

vs.

EALON M. LAMBERT; et aI
Respondents

JULIA P. WILDER
Petitioner



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As an initial matter, it aPPears that this Court has

jurisdiction to consider these RuIe 60 (b) motions despite

the fact that these cases are currently on appeal. In

parrott v. Wilson, 707 F.2d 1252 (I1th Cir.), cert.

denied, _u.s._ (1983), the court stated, "w€ have

recognized the discretionary power of a district court to

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

noticed.. Ijl3 at L266-57 n.8 (citing Lairsey v. Advance

Abrasiveg Co., 542 F.2d 928, 930 (sth Cir. L976)i Perrell v.

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

The Court agrees with respondents that a proPer

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 "shal] a1]ege...the

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

Under S 2243, "[t]he writr oI order to show cause [why the

writ should not be grantedl sha1] be directed to the person

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

371 U.S. 236, 241-42 (1963), the Supreme Court determined

thc propcr cuatodian by reference to state law- 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 specifJ-ed in his

sentence or until he is fu1ly pardoned. " A1a. Code

s1s-22-26.

The Court neverLheless sees some merit in petitioners'

contention that they have named the Proper respondents. The

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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 shaIl be the

particular...Parole officer responsible for supervising the

applicant, and the official in charge of the

parole...agency." 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 }aw, 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 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

prl,ron from yhich they uere paroled, the Court believes that

rorpondcntt rrc ProPGr Particg ag well.

The Court diEagrees with respondents I contention that

petitioners may not amend their petitions to add the warden

as respondent. In West v. Louisiana, 478 F.2d 1026 (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

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petition. " Id. at L029. 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 reasoning was dicta, and that the real basis

for the Fifth circuit's decision was the fact that

petitioner Proceeded pro se and used a misleading form. See

id. at 1029-3I. The court could rely on these grounds,

however, only if the defect was procedural rather than

Jurl,edlctional. see & at 1031 ("We are unwi111n9 to

disregard a violation of petitioner's constitutional rights

so]e]y because he has tripped on a procedural hurd}e""") '

Excusable negtect would not cure a jurisdictional defect'

The court re jects respondents' argument that it 1til}

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

also gtere in custody there, although it is tiot clear f rom

the record whether this argument is correct. Section

224L(d) is a venue statute, however, and not a

jurisdictional restriction. United States ex reI. Sero v.

preiser, 506 F,2d 1115, ]j-28 (2d Cir. 1974), cert. denied,

42t U.S. g2l (1975); 17 Wright, Miller & cooPer s 4268, at

5g7-gB (1978). Respondents clearly have waived any

objection to the venue of this action.

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Requiring petitioners here to amend their petitions

would not only comport with the law 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. " 17 Wright, Ivli11er

& Cooper S 4258, at 695 n.18 (1978). Petitioners "would

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

judiciary would once more have to consider Itheir] case IsJ .

The result would only be to delay granting the relief to

which" they are entitled. west, 47I 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 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

Gcncral is in the beat position to inform the Court as to
tDf proPar p.rtlar rorpondent. The Attorney General did not
tuggaat thet the narned respondents were not the proper

parties until after petitioners had largely prevailed on

their pet.itions. 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 1ike1y than

the warden to be abre to provide the relief petitioners

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seek. Thus, the Court will deny respondentsr 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 JuIy, 1984.

le

UNITED STATES DISTRICT JI,'DCE

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