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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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 VICTOR OSTAPENKO, Petitioner, 7 8 9 10 Case No. 16-cv-02849-HSG (PR) ORDER OF TRANSFER v. ATTORNEY GENERAL, Respondent. United States District Court Northern District of California 11 12 Victor Ostapenko has filed a habeas petition under 28 U.S.C. § 2241 to challenge the 13 legality of his custody by the U.S. Immigration and Customs Enforcement (“ICE”), pending his 14 removal from the United States. He is being detained at the Etowah County Detention Center in 15 Gadsden, Alabama. 16 Generally, 28 U.S.C. § 2241 is the proper basis for a habeas petition by a state prisoner 17 who is not held “pursuant to the judgment of a State court,” 28 U.S.C. § 2254, for instance a pre- 18 trial detainee, a prisoner awaiting extradition, or a prisoner whose conviction has been reversed on 19 appeal. See Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000) (listing “pre-conviction 20 custody, custody awaiting extradition, or other forms of custody that are possible without a 21 conviction” as examples of when Section 2241 applies). Section 2241 is the proper basis for the 22 instant petition because petitioner is challenging his detention pending removal. 23 The petition must be transferred because jurisdiction does not lie in this district. Section 24 2241 allows “the Supreme Court, any justice thereof, the district courts and any circuit judge” to 25 grant writs of habeas corpus “within their respective jurisdictions.” 28 U.S.C. § 2241(a). The 26 Supreme Court has interpreted the “within their respective jurisdiction” language to mean that a 27 Section 2241 petitioner challenging his present physical custody must file a petition for a writ of 28 habeas corpus in the district of confinement. Rumsfeld v. Padilla, 542 U.S. 426, 446-47 (2004). 1 Etowah County is located within the venue of the Northern District of Alabama. This case 2 is therefore TRANSFERRED to the United States District Court for the Northern District of 3 Alabama. See 28 U.S.C. § 1404(a). 4 The Clerk shall transfer this matter forthwith. 5 IT IS SO ORDERED. 6 Dated: 6/29/2016 7 8 HAYWOOD S. GILLIAM, JR. United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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