JOSE ALBERTO ZURAWSKY VERSUS JOHN ASHCROFT, IN HIS CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL.

CIVIL ACTION NO: 03-439, SECTION: “J” (6)United States District Court, E.D. Louisiana.
May 7, 2003

ORDER AND REASONS
CARL J. BARBIER, United States District Judge

Before the Court is Defendants’ Motion to Dismiss (Rec. Dcc. 3) which was set for a hearing on the briefs on April 16, 2003. plaintiff Jose Alberto Zurawsky has filed a memorandum in opposition (Rec. Doc. 3). Defendants’ motion seeks the dismissal of the petition for writ of habeas corpus filed by Plaintiff pursuant to 28 U.S.C. § 2241. Alternatively, Defendants move the Court to transfer the above-captioned matter to the Western District of Louisiana on the grounds that venue in this forum is improper.

Plaintiff is currently detained by the United States Immigration and Naturalization Service[1] (“INS”) at its facility in Oakdale, Louisiana. Plaintiff, through counsel, filed this petition for issuance of a writ of habeas corpus pursuant to § 2241 against John Ashcroft, as Attorney General of the United States, J. Michael Johnson, as Acting District Director of the New Orleans District of the INS, and Charles Foti, as Criminal Sheriff of Orleans Parish. In his petition, Plaintiff seeks a court order directing either the INS or the Sheriff’s office to transport him to New Orleans for a hearing on a motion to vacate sentence that he has filed in a criminal matter in Orleans Parish Criminal Court. Upon consideration of the briefs submitted by counsel, the § 2241 petition, the record, and the applicable law, the Court concludes that Defendants’ motion should be granted in part and denied in part.

28 U.S.C. § 2241 (a) provides that “[w]rits of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.” The Fifth Circuit has construed the general habeas provision in § 2241 to be a jurisdictional requirement. Lee v. Wetzel, 244 F.3d 370, 373-74 (5th Cir. 2001). The Fifth Circuit has further held that jurisdiction over a § 2241 petition lies only in the district of the petitioner’s incarceration. Id. at 373; see also Hooker v. Sivley, 187 F.3d 680, 682
(5th Cir. 1999) (holding that a § 2241 petition must be filed in the district where the petitioner is incarcerated); United States v. Gabor,905 F.2d 76, 78 (5th Cir. 1990) (holding that a § 2241 petition must be filed in a district with jurisdiction over either the petitioner or his custodian)

Accordingly, a district court of improper venue lacks jurisdiction over the § 2241 petition and thus does not have the authority to transfer the petition to the proper district. Lee, 244 F.3d at 374. The district court is required to dismiss the petition without prejudice to the petitioner’s ability to refile the petition in the proper forum. Id. at 374-75.

The record indicates that at the time of the filing of the petition and at present, Plaintiff has been detained at the INS facility in Oakdale, Louisiana. Oakdale, Louisiana is located within the jurisdiction of the United States District Court for the Western District of Louisiana. Thus, this Court lacks jurisdiction to preside over the above-captioned matter. Plaintiff’s § 2241 petition should be filed in the Western District of Louisiana.[2]

Accordingly;

It is HEREBY ORDERED that Defendants’ Motion to Dismiss (Rec. Doc. 3) is granted in part and denied in part.

It is FURTHER ORDERED that Plaintiff’s claims brought in his § 2241 petition are DISMISSED WITHOUT PREJUDICE to his right to file the petition in the Western District of Louisiana.

[1] As of March 1, 2003, the INS ceased its existence as an independent agency and is now a part of the Department of Homeland Security.
[2] This Court lacks jurisdiction and the § 2241 petition will thus be dismissed without prejudice, Defendants’ arguments in support of a dismissal with prejudice will be addressed by the Western District of Louisiana. However, it is noted that Plaintiff has apparently failed to exhaust his state court remedies. See, e.g., Dickerson v. Louisiana,816 F.2d 220, 225 (5th Cir. 1987). There is an existing order issued by Judge Waldron directing the Orleans Parish Sheriff’s Office to take custody of Plaintiff and transport him to New Orleans for the hearing on his motion to vacate. Plaintiff has not sought a writ of mandamus from a state court compelling the Sheriff’s Office to comply with Judge Waldron’s order.

Furthermore, it appears that Plaintiff has failed to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). A federal district court has no authority to issue a writ of habeas corpus ad prosequendum to produce a defendant, in federal custody, for a hearing in state court. Huston v. Kansas, 390 F.2d 156, 157 (10th Cir. 1968). Traditionally, that writ “has been [used] to bring a defendant in the custody of another sovereign to trial before the court issuing the writ.”Id. Thus, the writ would have to be issued by the state court presiding over Plaintiff’s criminal matter.