United States District Court, Southern District of New York
June 21, 1991
LAZARO DREKE PEON, PETITIONER,
RICHARD THORNBURGH, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.
The opinion of the court was delivered by: Stanton, District Judge.
MEMORANDUM AND ORDER
Petitioner Lazaro Dreke Peon seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (1988), asserting that he is being
held by the Immigration and Naturalization Service unlawfully.
Respondent argues that since petitioner is incarcerated at the
Federal Correctional Institute in Raybrook, New York, which is
in the Northern District of New York, this court has no
jurisdiction to consider the petition.
A petition for habeas corpus must be brought against the
petitioner's custodian, and the court considering the petition
must have jurisdiction over that custodian. Billiteri v. United
States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976); see
also Braden v. 30th Judicial Cir. Ct., 410 U.S. 484, 93 S.Ct.
1123, 35 L.Ed.2d 443 (1973). In this case, petitioner's
custodian is Raybrook's warden, rather than the Attorney
General. See Billiteri, 541 F.2d at 948. Since Raybrook is
located in the Northern District of New York, the petition must
be brought there. See ibid.; In re Tripati, 836 F.2d 1406, 1407
(D.C. Cir. 1988) (per curiam) (petition must be brought in
district in which petitioner's custodian is located); Hassain
v. Johnson, 790 F.2d 1420, 1420 (9th Cir. 1986) (per curiam)
(same), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d
However, as respondent suggests, in the interest of justice,
to avoid unnecessary delay of consideration of the petition's
merits, this action should be transferred to the United States
District Court for the Northern District of New York pursuant
to 28 U.S.C. § 1406(a) (1988), rather than dismissed.
Accordingly, the clerk of the court is ordered to transfer
this action to the United States District Court for the
Northern District of New York.
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