Bui v. Lund et al

Filing 4

ORDER DISMISSING PETITION. Signed by Judge Cathy Ann Bencivengo on 12/28/2016.(All non-registered users served via U.S. Mail Service)(dxj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Hung Bui,

Case No.: 16cv2763-CAB-BLM
Petitioner,

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v.

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ORDER DISMISSING PETITION

Troy Lund, Bureau of Immigration
Customs Enforcement; Jeh Johnson,
Secretary of Homeland Security; Loretta
Lynch, Attorney General,

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Respondents.

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On November 7, 2016, Petitioner Hung Bui (“Petitioner”), proceeding pro se, filed

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a “Motion to Issue Order Directing Respondents to Answer to Abuse of Process Claim

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due to their Failure to Lift a Department of Homeland Security Detainer Pursuant to 8

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U.S.C. §§1252 & 1253,” which Petitioner alleges is brought pursuant to 28 U.S.C. §2241

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(“Petition”).

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DISCUSSION

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Petitioner commenced this action against Troy Lund, Bureau of Immigration

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Customs Enforcement; Jeh Johnson, Secretary of Homeland Security; and Loretta Lynch,

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Attorney General. See Pet. at 1. However, the proper respondent in a habeas case is the

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person having custody, i.e. legal control, over the petitioner. 28 U.S.C. § 2243; Rumsfeld
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16cv2763-CAB-BLM

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v. Padilla, 542 U.S. 426, 439 (2004). For ordinary prisoners, such a custodian is the

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prisoner's warden. Chatman–Bey v. Thornburgh, 864 F.2d 804, 811 (D.C. Cir. 1988).

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Here, Petitioner has not named a warden.

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In addition, a habeas petition under § 2241 must be filed in the federal court with

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territorial jurisdiction over the respondent. See 28 U.S.C. § 2241(a) (providing that

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“[w]rits of habeas corpus may be granted by ... the district courts ... within their

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respective jurisdictions”); Stokes v. U.S. Parole Comm'n, 374 F.3d 1235, 1239

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(D.C.Cir.2004) (“[A] district court may not entertain a habeas petition involving present

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physical custody unless the respondent custodian is within its territorial jurisdiction.”).

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According to the Petition, Petitioner is incarcerated at the Federal Correctional Institution

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in Mendota, California, which is within the territorial jurisdiction of the United States

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District Court for the Eastern District of California. See

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https://www.bop.gov/locations/institutions/men/; 28 U.S.C. §84(b). Therefore, even if

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Petitioner were to name the warden of the institution where he is incarcerated, the

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Petition must be filed in the Eastern District of California.

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Finally, pursuant to Federal Rule of Evidence 201, the Court takes judicial notice

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of the court records in the United States District Court for the Central District of

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California in Case No. 16cv1138-RGK-RAO, where Petitioner filed a nearly identical

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petition against the same respondents, which petition was summarily dismissed. [See

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C.D. Cal. Case No. 16cv1138, Docket No. 5.]1 Thus, while this Court has discretion to

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transfer the case to the Eastern District pursuant to 28 U.S.C. §16312, the Court finds that

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it is in the interests of justice to dismiss the Petition.

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/////

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This Court adopts the reasoning of the Central District in Docket No. 3 as additional grounds for
dismissal of this Petition. See Case No. 16cv1138, Docket No. 5 at 2-4.
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Section 1631 gives federal courts “authority to make a single decision upon concluding that it lacks
jurisdiction-whether to dismiss the case or, ‘in the interest of justice,’ to transfer it to a court of appeals
that has jurisdiction.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 803, 108 S.Ct. 2166,
100 L.Ed.2d 811 (1988).
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16cv2763-CAB-BLM

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CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED THAT the Petition

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shall be DISMISSED.

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Dated: December 28, 2016

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16cv2763-CAB-BLM