RUSSELL v. LEVI Et Al - Document No. 2

RUSSELL v. LEVI et al Doc.
2
Case 1:06-cv-02643-FLW Document 2 Filed 06/21/2006 Page 1 of 5
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY
:
JAMES A. RUSSELL, :
: Civil No. 06-2643 (FLW)
Petitioner, :
:
v. :
: OPINION
TROY LEVI, et al., :
:
Respondents. :
:
APPEARANCES:
JAMES A. RUSSELL, Petitioner pro se

#55452-066
F.D.C. Philadelphia
P.O. Box 562
Philadelphia, New Jersey 19105
WOLFSON, District Judge
This matter is before the Court on the petition of James A.
Russell (“Russell”) for habeas corpus relief under 28 U.S.C. §
2241,1 challenging his federal indictment as “void ab initio”.
Russell is presently confined at the Federal Detention Center in
1
Section 2241 provides in relevant part:
(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective
jurisdictions.
(c) The writ of habeas corpus shall not extend to a
prisoner unless-- ... (3) He is in custody in violation
of the Constitution or laws or treaties of the United
States ... .
Dockets.Justia.com
Philadelphia, Pennsylvania. He also admits that his criminal
proceedings are ongoing. For the reasons set forth below, the
Court will dismiss the petition for lack of jurisdiction.
I. BACKGROUND
The following background facts are taken from the petition
and attachments, and are accepted as true for purposes of this
Opinion and accompanying Order.
On or about January 2006, Russell was charged in a single
count indictment with one count of mailing a threatening
communication, in violation of 18 U.S.C. § 876. Petitioner
admits that his criminal proceedings are ongoing, and that he is
confined at F.D.C. Philadelphia. The Court notes that the
criminal proceedings are not pending in this district court.
Russell does not identify the district court where his criminal
proceedings are pending.
In his petition, Russell argues that the statute on which
his indictment is based is unconstitutional on its face, and is
“void ab initio”, thus making his indictment defective. He seeks
his immediate release from jail.
II. JURISDICTIONAL REQUIREMENT
Section 2241 constitutes the general habeas corpus statute
under which federal prisoners may seek relief for claims of
unlawful custody. A petition brought under § 2241 challenges the
very fact or duration of physical imprisonment, and seeks a
2
determination that the petitioner is entitled to immediate
release or a speedier release from that imprisonment. Preiser v.
Rodriguez, 411 U.S. 475, 484-86, 500 (1973).
However, jurisdiction over a § 2241 habeas petition is
limited to the district where the petitioner is being held in
custody. 28 U.S.C. § 2241(a); Braden v. 30th Judicial Circuit
Court, 410 U.S. 484, 500 (1973)(personal jurisdiction over a
federal habeas corpus petition pursuant to 28 U.S.C. § 2241 lies
in the federal judicial district in which the custodian of the
petitioner resides); Ahrens v. Clark, 335 U.S. 188 (1948); Yi v.
Maugans, 24 F.3d 500, 507 (3d Cir. 1994)(“[a] district court’s
habeas corpus jurisdiction is territorially limited and extends
only to persons detained and custodial officials acting within
the boundaries of that district”); United States v. Kennedy, 851
F.2d 689, 690 (3d Cir. 1988); Valdivia v. Immigration and
Naturalization Serv., 80 F. Supp. 2d 326, 332-333 (D.N.J. 2000).
Here, Russell was confined at F.D.C. Philadelphia in
Philadelphia, PA at the time he filed his petition. He currently
remains confined at F.D.C. Philadelphia. Russell also properly
named the warden of that facility as respondent in this matter.
Habeas jurisdiction as a general matter continues to be in
the district where the prisoner was incarcerated at the time the
habeas petition was filed. See Ex parte Endo, 323 U.S. 283
(1944); Chavez-Rivas v. Olsen, 194 F. Supp.2d 368, 371 (D.N.J.
3
2002)(observing that “[b]oth the Supreme Court and the Third
Circuit have held that the transfer of a habeas petitioner to
another judicial district after the filing of a habeas corpus
petition does not defeat the original District Court’s
jurisdiction to entertain the petition”)(citing Ex Parte Endo,
323 U.S. at 304; Ex Parte Catanzaro, 138 F.2d 100, 101 (3d Cir.
1943), cert. denied, 321 U.S. 793 (1944)). Therefore, this Court
concludes that it lacks jurisdiction to consider Russell’s
§ 2241 habeas petition since it was filed while he was confined
within this judicial district.
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interest of
justice, transfer such action ... to any other such court in
which the action ... could have been brought at the time it was
filed.” 28 U.S.C. § 1631.
Here, Russell admits that his federal criminal proceedings
are still ongoing. Thus, he has the opportunity to raise the
claim asserted here in that proceeding. In the event Russell is
now convicted, he may raise this claim on direct appeal to the
appropriate Circuit Court of Appeals, or in a motion under 28
U.S.C. § 2255, which must be brought before the sentencing court.
Russell has not identified the district court where his criminal
proceedings are ongoing. Therefore, this Court cannot transfer
this action to the appropriate district court. Accordingly, the
4
Court is constrained to dismiss this § 2241 habeas petition for
lack of jurisdiction.
III. CONCLUSION
For the reasons set forth above, the petition will be
dismissed for lack of jurisdiction. An appropriate order
follows.
S/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge
Dated: June 21, 2006

RUSSELL v. LEVI Et Al - Document No. 2

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RUSSELL v. LEVI et al Doc.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

JAMES A. RUSSELL, Petitioner pro se

WOLFSON, District Judge

This matter is before the Court on the petition of James A.

Russell (“Russell”) for habeas corpus relief under 28 U.S.C. §

2241,1 challenging his federal indictment as “void ab initio”.

Russell is presently confined at the Federal Detention Center in

(a) Writs of habeas corpus may be granted by the

Philadelphia, Pennsylvania. He also admits that his criminal

Court will dismiss the petition for lack of jurisdiction.

The following background facts are taken from the petition

and attachments, and are accepted as true for purposes of this

Opinion and accompanying Order.

On or about January 2006, Russell was charged in a single

count indictment with one count of mailing a threatening

communication, in violation of 18 U.S.C. § 876. Petitioner

admits that his criminal proceedings are ongoing, and that he is

confined at F.D.C. Philadelphia. The Court notes that the

criminal proceedings are not pending in this district court.

proceedings are pending.

In his petition, Russell argues that the statute on which

his indictment is based is unconstitutional on its face, and is

“void ab initio”, thus making his indictment defective. He seeks

his immediate release from jail.

II. JURISDICTIONAL REQUIREMENT

Section 2241 constitutes the general habeas corpus statute

under which federal prisoners may seek relief for claims of

unlawful custody. A petition brought under § 2241 challenges the

very fact or duration of physical imprisonment, and seeks a

determination that the petitioner is entitled to immediate

release or a speedier release from that imprisonment. Preiser v.

Rodriguez, 411 U.S. 475, 484-86, 500 (1973).

However, jurisdiction over a § 2241 habeas petition is

limited to the district where the petitioner is being held in

custody. 28 U.S.C. § 2241(a); Braden v. 30th Judicial Circuit

Court, 410 U.S. 484, 500 (1973)(personal jurisdiction over a

federal habeas corpus petition pursuant to 28 U.S.C. § 2241 lies

in the federal judicial district in which the custodian of the

petitioner resides); Ahrens v. Clark, 335 U.S. 188 (1948); Yi v.

Maugans, 24 F.3d 500, 507 (3d Cir. 1994)(“[a] district court’s

habeas corpus jurisdiction is territorially limited and extends

only to persons detained and custodial officials acting within

the boundaries of that district”); United States v. Kennedy, 851

F.2d 689, 690 (3d Cir. 1988); Valdivia v. Immigration and

Naturalization Serv., 80 F. Supp. 2d 326, 332-333 (D.N.J. 2000).

Here, Russell was confined at F.D.C. Philadelphia in

Philadelphia, PA at the time he filed his petition. He currently

remains confined at F.D.C. Philadelphia. Russell also properly

named the warden of that facility as respondent in this matter.

Habeas jurisdiction as a general matter continues to be in

(1944); Chavez-Rivas v. Olsen, 194 F. Supp.2d 368, 371 (D.N.J.

2002)(observing that “[b]oth the Supreme Court and the Third

Circuit have held that the transfer of a habeas petitioner to

another judicial district after the filing of a habeas corpus

petition does not defeat the original District Court’s

jurisdiction to entertain the petition”)(citing Ex Parte Endo,

concludes that it lacks jurisdiction to consider Russell’s

§ 2241 habeas petition since it was filed while he was confined

within this judicial district.

Whenever a civil action is filed in a court that lacks