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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

LAZARO ROCHE,

ALIEN # A74128863,

Petitioner,

vs. Case No. 4:11cv143-MP/WCS

IMMIGRATION AND

CUSTOM ENFORCEMENT (ICE),

Respondent.

 /

REPORT AND RECOMMENDATION

Petitioner, proceeding pro se, initiated this case on April 8, 2011, by filing a

petition for a writ of habeas corpus under § 2241. Doc. 1. Petitioner contends he was

previously ordered removed (no date indicated for order or removal), but was not able to

be removed during the removal period, and because there is no agreement with the

Republic of Cuba, he was released on supervision. Id., at 4. Petitioner has been

convicted and sentenced to prison and is currently in the custody of the Department of

Corrections. Id., at 5. He contends that because I.C.E. has a detainer against him, he

is being denied due process and equal protection rights, "cannot obtain minimum or

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community custody" and he is "unable to qualify for early release programs and or work

release." Id., at 5. Petitioner seeks an order from this Court setting aside the I.C.E.

detainer. 

Respondent has filed a motion to dismiss or transfer, doc. 12, asserting that

because Petitioner is incarcerated in Miami and was not within the jurisdiction of the

Northern District of Florida when this case was initiated, the case should be transferred

to the Southern District of Florida where Petitioner is located. Respondent points out

that a district court is limited to granting habeas relief "within their respective

jurisdictions" under 28 U.S.C. § 2241 and the proper jurisdiction is in the district of

confinement. See Rumsfeld v. Padilla, 542 U.S. 426, 439, 124 S.Ct. 2711, 159 L.Ed.2d

513 (2004)1; see also Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484,

494-495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). The simple and consistently applied

rule in these cases is that "[w]henever a § 2241 habeas petitioner seeks to challenge

his present physical custody within the United States, he should name his warden as

respondent and file the petition in the district of confinement." Padilla, 542 U.S. at 447,

124 S.Ct. at 2724. In this case, Petitioner was not within the Northern District of Florida

when the case was initiated. Thus, the motion to transfer this case should be granted,

and because the law is clear on this issue, there is no need to await a response from

Petitioner before granting the motion. This action should be transferred to the Southern

District of Florida where Petitioner resided when he mailed this § 2241 petition to this

Court. See doc. 1. 

1

 Padilla rejected the view that in "cases involving prisoners detained for 'other

than federal criminal violations,' " a proper respondent may be "the person exercising

the 'legal reality of control' over the petitioner . . . ." 542 U.S. at 437, 124 S.Ct. at 2719.

Case No. 4:11cv143-MP/WCS

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In light of the foregoing, it is respectfully RECOMMENDED that the motion to

dismiss or transfer petition for writ of habeas corpus, doc. 12, be GRANTED and this

petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 by Petitioner

Lazaro Roche be TRANSFERRED to the United States District Court for the Southern

District of Florida, Miami Division, pursuant to 28 U.S.C. § 89 for all further proceedings

as this Court lacks jurisdiction.

IN CHAMBERS at Tallahassee, Florida, on August 9, 2011.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

Case No. 4:11cv143-MP/WCS

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