GLD

- 347 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1764

___________ YAKOV G. DRABOVSKIY, Appellant

v. WARDEN OF THE FCI ALLENWOOD

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 3

- 13

- cv - 00383 ) District Judge: Honorable Richard P. Conaboy

____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

July 25, 2013 Before: FUENTES, FISHER and VANASKIE, Circuit Judges

(Opinion filed : August 6, 2013 )

_________ OPINION

_________ PER CURIAM In the United States District Court for the Weste rn Di strict of Louisiana, Yakov G.
D r a bovskiy was conv

icted, after a jury trial, of twenty counts of violating 8 U.S.C. § 1253(a)(1)(B) for failing to depart after having been order ed removed. United States v. Drabovskiy , W.D. La. Crim. No. 2:09

- cr - 00146. On April 6, 2010, he was sentenced to2

seventy

- eight months in prison (with credit for time served since his arrest) and a term of supervised release. D r a bovskiy appealed the judgment to the Fifth Circuit Court of Appeals. While the appeal was pending , Dr a bovskiy, housed at the Federal Correctional Institution at Allenwood, filed two habeas corpus petitions in the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civ. Nos. 4:10

- cv - 01830 & 4:10

-

cv - 02226)

. In the first, he c hallenged his conviction for failure to depart and explained that 28 U.S.C. § 2241 was “designed for QUICK liberation.” The District Court construed the petition as filed under § 2241 and denied it without prejudice because
D r a bovskiy had not exhausted hi s direct appeal and presented claims not appropriately brought pursuant to § 2241 (the challenge, the District Court explained, should have been initiated in the district of conviction as a motion under 28 U.S.C. § 2255). The District Court also ruled tha t the challenge was premature insomuch as it challenge d immigration custody because D r a bovskiy was not in immigration custody. In the second petition, D r a bovskiy again challenged his conviction. The District Court ruled that the petition was a successiv e petition under 28 U.S.C. § 2244(a) and that
the claims were still unexhausted (because t he direct appeal then remained pending ) , still misdirected (because they should have been brought in a § 2255 motion in the district of conviction), and still prematu re as to any immigration custody issues. The Fifth Circuit Court of Appeals affirmed the judgment in Drabvoskiy’s
criminal case in June 2011. See United States v. Drabovskiy , 435 F. App’x 319 (5th Cir.3

2011) (per curiam). It does not appear that D rabov skiy sought relief under § 2255 in the District Court for the Western District of Louisiana. I nstead, i n February 2013, Drabovskiy filed , in the District Court for the Middle District of Pennsylvania , another challenge to his conviction for failure to dep art. He also argued that the writ of habeas corpus must not be suspended. 1 A Magistrate Judge recomm ended that Drabovskiy’s case b e dismissed . T he Magistrate Judge described his filing as an unauthorized succe ssive petition under § 2244(a) and a petition that was not properly brought under § 2241 because it needed to be presented as a § 2255 motion in the district of conviction. The Magistrate Judge
further stated that to the extent that Drabovskiy sought to challenge any immigration detention, any chall enge to future immigration detention was premature where he was not yet in the custody of immigration officials and any challenge to past detention was moot where he had already been released from it. After Drabovskiy filed objections in which he stated, among other things, that he “does not challenge this immigrational [sic] problems in [his] petition,” the District Court adopted the Magistrate Judge’s report and
recommendation with a modification to not consider the immigration

- custody issues.
The Distr ict Court dismissed the action without prejudice to Drabovskiy’ s pursuit of the other legal avenues described in the report. Drabovskiy then filed a motion to amend his

1 In doing so, h e contended that a su spension

- of

- the

- writ claim “should not be confused with 2241, 2254, or 2255 petitions.”4

filing to add a claim about the indictment in his criminal case, which the District Co urt denied. Drabovskiy appeals

. The parties were notified that this case was slated for possible summary action. In response, Drabovskiy asks that we reverse the District Court’s ruling and order the District Court to consider th e merits of his case . H e also presents a “motion for the default and a default judgment , ” on the basis that the appellee has not filed any argument relating to this appeal , and a “motion for release pending appeals

. ” Our review of the District Court’s legal conclusions is plena ry, and our consideration of its factual findings is under a clearly erroneous standard of review

. S ee Cradle v. United States ex rel. Miner , 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). We review its exercises of discretion for abuse thereof. S ee Gra yson v. Mayview State Hosp

. , 293 F.3d 103, 108 (3d Cir. 2002)

. The District Court properly d etermined that it was without jurisdiction to considered Drabovskiy’s filing as a § 2241 motion . Drabovskiy cannot bring his claims under § 2241, because a moti on to challenge his conviction and sentence pursuant to 28 U.S.C. § 2255 is not “inadequate or ineffective.” 28 U.S .C. § 2255. However, the District Court did not consider whether the filing was a § 2255 motion. Although Drabovskiy assert s that his fili ng is some sort of habeas petition not covered by §§ 2241, 2254, or 2255, in substance, his filing is a § 2255 motion. S ee Lewis v. Att’y Gen. of the
U.S. , 878 F.2d 714, 722 n.20 (3d Cir. 1989) (requiring that a pro se pleading be “j udged5

by its substance rather than according to its form or label ”). He challenges the whole of his criminal case, from the indictment to the jury instructions, claiming trial court error and prosecutorial misconduct in between. Such a § 2255 motion , his first after his direct appeal (where it appears no § 2255 motion has been considered on the merits), is appropriately entertained only by the court that imposed his sentence. See 28 U.S.C. § 2255(a). So that the court that imposed Drabovskiy’s senten ce may consider his challenge to it , we vacate the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.
10.6. We remand with instructions for the District Court to transfer Drabovskiy’s § 2255 motion (ECF No. 1) and his proposed amendment ( in his motion to amend , ECF No. 7) to the United States District Court for the Western District of Louisiana. See 28 U.S.C. § 1631 (“[T]he court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed.”)

. Drabovskiy’ s request tha t we reverse the District Court, his “motion for the default and a default judgment , ” and his “motion for release pending appeals” are denied.