Iwuoha v.Chertoff et al(INMATE 2)(JC)

Filing 5

RECOMMENDATION of the Magistrate Judge that this case be transferred to the United States District Court for the Eastern District of Louisiana pursuant to provisions of 28 USC 1406(a). Objections to R&R due by 4/12/2005. Signed by Judge Vanzetta P. McPherson on 3/31/05. (sl, )

Iwuoha v.Chertoff et al(INMATE 2)(JC)

Doc. 5

Case 2:05-cv-00280-MHT-VPM

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Filed 03/31/2005

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IN THE UNITED STATES DISTRICT COURT F OR THE MIDDLE DISTRICT OF ALABAMA N O R T H E RN DIVISION __________________________________ V I C T O R IKE IWUOHA, #28388262 Petitioner, v. M I C H A EL CHERTOFF, SECRETARY OF HOMELAND SECURITY, et al., Respondents. __________________________________ * * * CIVIL ACTION NO. 2:05-CV-280-T * *

R E C O M M E N D A TI O N OF THE MAGISTRATE JUDGE O n March 28, 2005 Petitioner Victor Iwuoha filed this 28 U.S.C. § 2241 petition for h a b e a s corpus relief. Petitioner is an Immigration and Naturalization Service ("INS") d e t a i n ee , held in post-removal-order confinement at the Plaquemines Parish Detention Center in Braithwaite, Louisiana. He alleges that his continued confinement by the INS violates t h e Supreme Court's holdings in Zadvydas v. Davis, 533 U.S. 678 (2001) and Demore v. Kim , 538 U.S. 510 (2003).

DISCUSSION It is well-settled law that jurisdiction over a § 2241 petition lies in the federal district court whose territorial limits include the place of a petitioner's confinement or where a pe tit io ne r's custodian is located. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 4 8 4 (1973) (§ 2241 petitions typically heard by court having jurisdiction over petitioner's

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Case 2:05-cv-00280-MHT-VPM

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custodian); United States v. Plain, 748 F.2d 620, 621 (11th Cir. 1984); Blau v. United States, 5 6 6 F.2d 526, 527 (5 th Cir. 1978); United States v. Miller, 871 F.2d 488, 490 (4 th Cir. 1989); U n i t e d States v. Hutchings, 835 F.2d 185, 187 (8 th Cir. 1987); Chukwurah v. INS, 813 F. S u p p . 161, 168 (E.D. N.Y. 1993). Generally, the custodian is the person having the day-today control over the prisoner. Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir. 1986). Petitioner is presently incarcerated at the Plaquemines Parish Detention Center in B r a i t h w a it e , Louisiana. Consequently, his § 2241 challenge to his final order of deportation m u s t be raised in the district court that has jurisdiction over his custodian, i.e., the sup erin tend ent or warden of Plaquemines Parish Detention Center. Although this court lacks jurisdiction to consider the habeas corpus petition filed by Petitioner, Plain, 748 F.2d at 621, in the interest of justice, this court may transfer a case l a y i n g venue in the wrong division or district to any district or division in which it could have b e e n brought. 28 U.S.C. § 1406(a). Under the circumstances of this case, the court c o n c l u d e s that this case should be transferred to the United States District Court for the E a s t e r n District of Louisiana for review and determination.1

CONCLUSION A c c o r d i n g l y , it is the RECOM M EN DA TIO N of the Magistrate Judge that this case b e transferred to the United States District Court for the Eastern District of Louisiana pursuan t to the provisions of 28 U.S.C. § 1406(a). It is further

T h e undersigned's Recommendation for transfer of this case should not in any w a y be construed as a c o n s i d e r a t i o n on the merits of Petitioner's claims for relief.

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ORDERED that the parties are DIRECTED to file any objections to the said R e c o m m e n d a t i o n on or before April 12, 2005. Any objections filed must specifically identify the findings in the Magistrate Judge's Recommendation objected to. Frivolous, c o n c l u s iv e or general objections will not be considered by the District Court. The parties are a d v i s e d that this Recommendation is not a final order of the court and, therefore, it is not a p p e a l a b le . Failu re to file written objections to the proposed findings and recommendations in the M a g i s t r a te Judge's report shall bar the party from a de novo determination by the District Cou rt of issues covered in the report and shall bar the party from attacking on appeal factual f i n d in g s in the report accepted or adopted by the District Court except upon grounds of plain e r r o r or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 th Cir. 1982). See Stein v . Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of P r i c h a r d , 661 F.2d 1206 (11th Cir. 1981, en banc), adopting as binding precedent all of the d e c i s io n s of the former Fifth Circuit handed down prior to the close of business on S e p t e m b e r 30, 1981. D O N E this 31s t day of March, 2005.

/s/ Vanzetta Penn McPherson U N I TE D STATES MAGISTRATE JUDGE