Opinion
02-CV-2053 (FB)
September 4, 2003
EDGBERT LEWIS, Paterson, NJ, for Petitioner
ROSLYNN R. MAUSKOPF, ESQ. United States Attorney Eastern District of New York STEVEN J. KIM, ESQ. Assistant United States Attorney Brooklyn, NY, for Respondent
MEMORANDUM AND ORDER
Pro se petitioner Edgbert Lewis ("Lewis") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The court determines that the Eastern District of New York is not the proper venue for this litigation, and transfers it to the District of New Jersey.
Lewis, a native of Antigua, has lived in the United States since 1990 and became a lawful permanent resident in 1993. In 1994, he was convicted of criminal possession of a weapon in the third degree in Bronx County, New York. He has subsequently been convicted of attempted assault, aggravated harassment and criminal contempt. In February of 2000, the Immigration and Naturalization Service ("INS") commenced removal proceedings against Lewis in Newark, New Jersey pursuant to INA § 237(a)(2)(C), 8 U.S.C. § 1227(a)(2)(C), based on his conviction on a weapons offense, and INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)/ based on his conviction on an aggravated felony. On May 20, 2002, an Immigration Judge ordered Lewis removed. Lewis waived appeal. Lewis is currently incarcerated in New Jersey, pending deportation to Antigua.
Lewis seeks relief under § 2241 on the grounds that his 1994 conviction should not have rendered him deportable; that he was denied his rights under the Vienna Convention on Consular Relations, 21 LLS.T. 77, 596 U.N.T.S. 261, 1967 WL 18349 (ratified November 24, 1969); and that he is eligible for discretionary relief under 212(c), 212(h), and 240A of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), 1182(h), 1229(b). The Government has moved for transfer to the District of New Jersey on the grounds of lack of personal jurisdiction and improper venue.
For a Court to have personal jurisdiction over the respondent in a habeas corpus proceeding, "the court issuing the writ must have jurisdiction over the custodian." Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495 (1973). The Government contends that Lewis's custodian is the Newark District Director ("Director"), and that this Court lacks personal jurisdiction over that Director.
With the recent abolishment of the INS, the District Directors are now part of Border and Transportation Security, a division of the Department of Homeland Security.
Perhaps surprisingly, the issue of who is a habeas petitioner's custodian for purposes of a § 2241 motion remains unsettled in this Circuit. Disagreement centers on whether the Attorney General can be considered the custodian, or only the District Director of the district where the petitioner is confined. The Second Circuit has discussed the issue without deciding it, Henderson v. Immigration and Naturalization Service, 157 F.3d 106 (2d Cir. 1998). Recent decisions from other Circuit Courts have been flatly inconsistent. Compare Roman v. Ashcroft, 2003 WL 21919266 (6th Cir. 2003) (holding that the Attorney General was not a detainee's custodian for habeas corpus purposes) with Armentero v. Immigration and Naturalization Service, 2003 WL 22004997 (9th Cir. 2003) (holding that the Attorney General is the appropriate respondent for a § 2241 petition).
This Court need not grapple with the jurisdictional issues because the Eastern District of New York is not a proper venue for this litigation. "Traditional principles of venue are fully applicable in habeas suits." Henderson, 157 F.3d at 127. While a court generally resolves issues of jurisdiction before questions of venue, Leroy v, Great Western United Corp., 443 U.S. 173, 180, 99 S.Ct. 2710, 51 L.Ed.2d 464 (1979), the Second Circuit in Henderson determined that venue should be addressed first when a habeas petitioner has sought to name the Attorney General as his or her custodian. Henderson, 157 F.3d at 127-128. This will prevent forum shopping on the part of habeas petitioners. Id.
Factors to be considered in determining whether venue is proper include (1) "where all of the material events took place"; (2) where "the records and witnesses pertinent to petitioner's claim are likely to be found"; and (3) the convenience of the forum for both the respondent and the petitioner. Braden, 410 U.S. at 493-494.
There is no nexus whatsoever between the Eastern District of New York and this case. Lewis's weapons offense conviction arose in the Bronx, where he resided at the time. All deportation proceedings have been in New Jersey, where Lewis is currently incarcerated. Lewis's administrative records are in New Jersey. Moreover, a New Jersey district court will not have to resolve the personal jurisdiction issue in order to reach the merits of Lewis's petition. Under the Braden factors, New Jersey is a more appropriate venue for this petition than the Eastern District of New York.
The Court encourages Petitioner to amend his petition to name the Newark District Director, Andrea Quarantillo, as a respondent. Petitioner named Edward McElroy, the New York District Director, and Christine G. Davis, the New Orleans District Director, in his initial petition. Since there is nothing in the record to suggest that either McElroy or Davis has ever been Lewis's custodian, the Court sua sponte dismisses the petition as to McElroy and Davis. First Investors Corp. v. Liberty Mut. Ins. Co., 955 F. Supp. 274, 279 (S.D.N.Y. 1999) ("This Court . . . is empowered to search the record and, if warranted, to grant" relief even in the absence of a motion; "it is most desirable that the court cut through mere outworn procedural niceties and make the same decision as would have been made had defendant made a . . . motion.') (citation omitted).
This Court has broad discretion under 28 U.S.C. § 1406(a) and § 1404(a) to transfer cases to another judicial district. Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993) (regarding § 1406(a)); Kahane v. Carlson, 527 F.2d 492, 493 (2d Cir. 1975) (regarding § 1404(a)). Other district courts have used that discretion when a habeas petitioner has filed in an improper venue. Carranza v. Reno, 2000 WL 433957 at *1 (D. Conn. 2000) (transferring habeas petition based on improper venue when "[n]othing in this case has anything to do with the State of Connecticut"); Borja-Palacio v. United States, 1999 WL 816165 (S.D.N.Y. 1999) (transferring habeas case from New York to New Jersey). Such a transfer is warranted here.
CONCLUSION
Respondent's motion for a change of venue is granted; the case is transferred to the District of New Jersey. The Court sua sponte dismisses the petition as to Respondents McElroy and Davis. See footnote 2, supra.
SO ORDERED.