PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 95-4378 

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D.C. Docket No. 95-00484-CIV-WDF

FRANK VELASCO,

Petitioner-Appellant,

versus

DANIEL HORGAN, United States Marshal,

Southern District of Florida,

Respondent-Appellee.

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Appeal from the United States District Court 

for the Southern District of Florida

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(June 10, 1996)

Before HATCHETT and BLACK, Circuit Judges, and CLARK, Senior

Circuit Judge.

HATCHETT, Circuit Judge: 

 Appellant, Frank Velasco, appeals the district court's

decision denying his petition for writ of habeas corpus. Because

Velasco has been removed to New York following the Southern

District of Florida's denial of habeas corpus, this district
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lacks jurisdiction to provide Velasco relief. Thus, this appeal

is moot. 

BACKGROUND

On February 2, l995, United States marshals arrested Velasco

in Florida on an indictment and complaint issued in the Southern

District of New York. Velasco made his initial appearance before

a magistrate judge in the Southern District of Florida under

Federal Rule of Criminal Procedure 40, and the government made an

application for detention. On February 6, l995, the magistrate

judge held a detention hearing, denied the government's request

for an order of detention, and ordered that the Marshal release

Velasco on bond. The magistrate judge, pursuant to Local Rules

of the United States District Court for the Southern District of

Florida, Magistrate Judge Rule 4(a)(2), stayed Velasco's release

order pending the government's decision whether to appeal. The

magistrate judge set Velasco's removal hearing for February l3,

l995. 

Both the government and Velasco sought review of the

magistrate's release order but in different forums. On February

7, l995, the government, pursuant to l8 U.S.C. § 3l45(a),

appealed the magistrate's release order in the district court,

Southern District of New York. District Judge Tate (S.D.N.Y.)

held a telephonic hearing between the government and Velasco's

counsel and issued a stay of the Southern District of Florida

magistrate's release order. Subsequently, on February 9, l995,

in the Court of Appeals for the Second Circuit, Velasco moved to
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dissolve Judge Tate's stay order and for a writ of mandamus

directing the Southern District of New York to hold an immediate

hearing on the government's appeal of the magistrate's release

order. In an order dated February l4, l995, the Second Circuit

denied Velasco's motions in all respects. The Second Circuit's

decision allowed Judge Tate's stay of the release order to remain

in effect.

On February l0, l995, the district court in the Southern

District of Florida held a hearing on Velasco's emergency motion

to dissolve the automatic stay that the magistrate judge had

imposed. The government argued that as a result of the stay

order Judge Tate had imposed, the Southern District of Florida

lacked jurisdiction to consider the issue. On February 28, 1995,

the Southern District of Florida issued an order affirming the

magistrate's order and dissolving the automatic stay. That

order, however, did not address the stay Judge Tate had imposed. 

Velasco posted the required bail, but the Marshal would not

release him because of the stay that Judge Tate issued on

February 7, l995. Consequently, Velasco filed a Petition for

Habeas Corpus alleging that because a valid order set the

conditions of bail, and because Velasco posted the required bail,

the Marshal violated Velasco's constitutional rights in refusing

to release him. 

On March 20, l995, the Southern District of Florida issued

an order denying Velasco's petition for writ of habeas corpus. 

The district court stated that it did not have jurisdiction to
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resolve the dispute between the district courts of the Southern

District of Florida and the Southern District of New York. That

same day, the magistrate judge issued a warrant to remove Velasco

in custody to New York. Velasco filed an immediate appeal of the

order denying habeas corpus relief and filed an emergency motion

to this court to stay his custodial transportation to New York

pending resolution of the pendant appeal. On that evening, a

panel of this court denied the emergency motion to stay custodial

transportation pending the appeal. Thereafter, the marshals

transported Velasco to New York. 

CONTENTIONS

Velasco contends that his removal to New York did not defeat

the Southern District of Florida court's jurisdiction and did not

moot this appeal. He contends that the Southern District of

Florida, as the arresting district, had jurisdiction and was

obliged to exercise it to grant him habeas corpus relief. 

Velasco also contends that the Southern District of Florida

had full authority to set and review the terms of his pretrial

release while he remained in custody in that district. Velasco

argues that because the district court for the Southern District

of Florida affirmed the magistrate's order and the government

failed to appeal the affirmance, he should have been released on

bail. 

The government contends that the removal of Velasco to New

York moots the one issue that he raised in the habeas corpus

action. The government, however, contends that even if this
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court finds that jurisdiction existed in the district court, this

court lacks jurisdiction because Velasco's issue no longer

presents a live "case or controversy" under Article III of the

Constitution. Velasco's claim, the government argues, is not

likely to recur because Velasco has been transferred from the

Southern District of Florida to New York.

The government further contends that the district court

properly decided to refrain from deciding the dispute between the

Southern District of Florida and the Southern District of New

York concerning the appropriateness of Velasco's pretrial

detention because the Southern District of New York, where the

charges against Velasco remained pending, possessed original

jurisdiction over the magistrate's release order. 

ISSUES

The following issues are presented: (1) whether the Southern

District of Florida had jurisdiction over the habeas corpus

proceeding; and if so, (2) whether the district court should have

granted Velasco a writ of habeas corpus to enforce his pretrial

release orders. 

DISCUSSION

Velasco's removal to New York effectively divested this

court of jurisdiction because this court cannot provide him any

relief. We point out that at least one other circuit has been

faced with this issue. The Second Circuit held that an arresting

district, where a defendant remains incarcerated, should exercise

jurisdiction over that defendant's habeas corpus petition
 *

 This appeal resulted in part from a Local Rule of the

United States District Court for the Southern District of

Florida, Magistrate Judge Rule 4(a)(2), which reads as follows:

Government Appeal of Bond. At the conclusion of a bond

hearing pursuant to 18 U.S.C. § 3142 in which a Magistrate

Judge has set a bond which will result in release of a

defendant if the conditions of the bond are met, an

announcement in open Court by the prosecutor that the

government intends to appeal the bond to a District Judge

shall result in an immediate stay of the bond set by the

Magistrate Judge. Such stay shall continue until 5:00 p.m.

that day, or in the event bond is set in open court after

5:00 p.m., until 9:30 a.m. the morning of the following

business day, unless the prosecutor shall file a written

notice of appeal with the Clerk, upon which the stay shall

become permanent unless and until it is lifted by a District

Judge. The notice of appeal may be summary in form and need

not be typed, but it shall be followed on or before the

close of the business day next following the day the bond

was set by the filing of a detailed factual statement, in

proper form, setting forth the grounds of the appeal.

Under Magistrate Judge Rule 4(a)(2), the government can simply

file an informal notice of appeal and nullify a magistrate's

release order, thus, creating an automatic stay. The Southern

District of Florida should revisit Magistrate Judge Rule 4(a)(2)

or, at the least, study the situation this case presents. 

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challenging a magistrate's removal warrant. United States v.

Plain, 748 F.2d 620 (llth Cir. l984); see also Roba v. United

States, 604 F.2d 2l5 (2d Cir. l979) (holding that the district

court in the arresting district had jurisdiction to adjudicate

the merits of the petition).*

CONCLUSION

For the foregoing reasons, this appeal is dismissed as moot.

DISMISSED