Ostapenko v. Attorney General

Filing 6

ORDER OF TRANSFER. ***Civil Case Terminated.*** Signed by Judge Haywood S. Gilliam, Jr. on 6/29/2016. (Attachments: # 1 Certificate/Proof of Service)(ndrS, COURT STAFF) (Filed on 6/29/2016) [Transferred from California Northern on 6/30/2016.]

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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VICTOR OSTAPENKO,
Petitioner,

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Case No. 16-cv-02849-HSG (PR)
ORDER OF TRANSFER

v.
ATTORNEY GENERAL,
Respondent.

United States District Court
Northern District of California

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Victor Ostapenko has filed a habeas petition under 28 U.S.C. § 2241 to challenge the

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legality of his custody by the U.S. Immigration and Customs Enforcement (“ICE”), pending his

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removal from the United States. He is being detained at the Etowah County Detention Center in

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Gadsden, Alabama.

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Generally, 28 U.S.C. § 2241 is the proper basis for a habeas petition by a state prisoner

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who is not held “pursuant to the judgment of a State court,” 28 U.S.C. § 2254, for instance a pre-

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trial detainee, a prisoner awaiting extradition, or a prisoner whose conviction has been reversed on

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appeal. See Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000) (listing “pre-conviction

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custody, custody awaiting extradition, or other forms of custody that are possible without a

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conviction” as examples of when Section 2241 applies). Section 2241 is the proper basis for the

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instant petition because petitioner is challenging his detention pending removal.

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The petition must be transferred because jurisdiction does not lie in this district. Section

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2241 allows “the Supreme Court, any justice thereof, the district courts and any circuit judge” to

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grant writs of habeas corpus “within their respective jurisdictions.” 28 U.S.C. § 2241(a). The

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Supreme Court has interpreted the “within their respective jurisdiction” language to mean that a

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Section 2241 petitioner challenging his present physical custody must file a petition for a writ of

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habeas corpus in the district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 446-47 (2004).

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Etowah County is located within the venue of the Northern District of Alabama. This case

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is therefore TRANSFERRED to the United States District Court for the Northern District of

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Alabama. See 28 U.S.C. § 1404(a).

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The Clerk shall transfer this matter forthwith.

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IT IS SO ORDERED.

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Dated: 6/29/2016

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HAYWOOD S. GILLIAM, JR.
United States District Judge

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United States District Court
Northern District of California

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