The opinion of the court was delivered by: JAMES McCLURE Jr., District Judge
Eric Cosovic, a/k/a Isad Cosovic ("Petitioner"), a detainee of
the Bureau of Immigration and Customs Enforcement ("ICE")
presently confined at the York County Prison, York, Pennsylvania,
filed this pro se petition for writ of habeas corpus which is
labeled as seeking relief pursuant to 28 U.S.C. § 2241. The
required filing fee has been paid. Named as Respondent is "The
People of the State of New York." Record document no. 1, p. 1.
Cosovic identifies himself as being a native of
Serbia/Montenegro. His present petition does not directly contest
the legality of his ICE removal proceedings or his continued detention pending removal. Rather, his petition
challenges the legality of his 2001 criminal conviction in the
Supreme Court for Queens County, New York. Petitioner
acknowledges that pursuant to a negotiated plea agreement, he
pled guilty to a charge of Attempted Criminal Sale of a
Controlled Substance in the Third Degree. He was sentenced to a
four (4) to eight (8) year term of incarceration on March 21,
2001. As a consequence of his criminal conviction, removal
proceedings were subsequently initiated against Cosovic.
Petitioner claims entitlement to federal habeas corpus relief
on the grounds that the attorney who represented him during his
New York state criminal proceedings provided ineffective
assistance. He adds that his guilty plea "was unknowing and
involuntary." Id. at p. 3. Included in the allegations of
ineffective assistance is the claim that Cosovic's attorney
failed to advise him of the immigration related consequences of
his guilty plea. As relief, he asks this Court to vacate his New
York state conviction.
As noted above, Petitioner is attacking the legality of his New
York state criminal conviction. Consequently, since the petition
is a challenge to a state court conviction, it is actually
seeking relief pursuant to 28 U.S.C. § 2254.
It has been recognized that an application for habeas corpus
relief under § 2254 made by a person in custody under the judgment of and sentence of
a State court of a State having two or more Federal judicial
districts is properly filed either in the district court for the
district wherein such person is in custody or in the district
court for the district within which the State court was held
which convicted and sentenced him and each of those district
courts shall have concurrent jurisdiction to entertain the
application. See 28 U.S.C. § 2241(d).
Although the Petitioner is presently confined within the
jurisdiction of this Court, his present § 2254 action challenges
a conviction rendered by a state court which is not located
within this judicial district. Consequently, Cosovic's present
action is properly brought in the district court within which the
Supreme Court for Queens County, New York is located. A court may
transfer any civil action in the interest of justice, to any
district where the action could have been brought.
28 U.S.C. § 1404(a). The United States Supreme Court in Hoffman v. Blaski,
363 U.S. 335, 343 (1960) recognized that under § 1404(a), a civil
action may be transferred by a district court to another district
court where that action may have been brought.
The Supreme Court for Queens County, New York is located within
the confines of the United States District Court for the Southern
District of New York. The Southern District of New York is the
proper forum within which to attack the legality of Cosovic's
state conviction and also to answer the question of whether Petitioner has exhausted his state court remedies. Pursuant to §
1404(a), this matter will be transferred to the Southern District
of New York. Consequently,
IT IS HEREBY ORDERED:
1. The Clerk of Court is directed to transfer this
habeas corpus petition to the ...