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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

JORGE A. NUúEZ,

ALIEN # A24-455-910,

Petitioner,

vs. Case No. 4:11cv141-WS/WCS

IMMIGRATION AND CUSTOM 

ENFORCEMENT (ICE),

Respondent.

 /

REPORT AND RECOMMENDATION

Petitioner, proceeding pro se, filed a petition seeking a writ of habeas corpus

under § 2241 in this Court on April 7, 2011. Doc. 1. Petitioner paid the filing fee on

April 25, 2011. Doc. 4. The petition has now been reviewed.

Petitioner is currently incarcerated at the Everglades Correctional Institution in

Miami, Florida. Doc. 1. Petitioner seeks an order which will "set aside the I.C.E.

detainer" lodged against him, and states that because there is no agreement between

the United States and the Republic of Cuba, he cannot be removed. Id., at 3-4. 

Generally, the proper defendant in a habeas case is the petitioner's "immediate

custodian," that is, the warden of the facility in which the petitioner is incarcerated or

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detained at the time he files the habeas petition.1 Rumsfeld v. Padilla, 542 U.S. 426,

439, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004); 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 this

case was initiated. Therefore, this action should be transferred to the Southern District

of Florida where Petitioner is housed for further proceedings on this § 2241 petition. 

In light of the foregoing, it is respectfully RECOMMENDED that this petition for

writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 by Petitioner Jorge A. Nuûez,

be TRANSFERRED to the United States District Court for the Southern District of

Florida, Miami Division, pursuant to 28 U.S.C. § 89(c) for all further proceedings as this

Court lacks jurisdiction.

IN CHAMBERS at Tallahassee, Florida, on May 5, 2011.

 s/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

 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. 4:11cv141-WS/WCS

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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. 4:11cv141-WS/WCS

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