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Sylvester v. New York State Board of Parole

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


July 23, 2008

ALEXANDER SYLVESTER, PETITIONER
v.
NEW YORK STATE BOARD OF PAROLE, RESPONDENT.

The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

Alexander Sylvester, an inmate at USP-Allenwood, White Deer, Pennsylvania, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The sole respondent in this matter is the New York State Board of Parole.

Sylvester's petition is extremely brief. However it is clear that Sylvester is not challenging his current federal conviction but rather takes issue with the State of New York's recent decision to lodge a parole violation warrant and/or detainer against him. Sylvester seeks to prevent the State of New York from acquiring custody over him as he believes it is inconsistent with his federal sentencing order.

Because the United States District Court for the Northern District of New York has concurrent jurisdiction over this petition and because Sylvester is challenging a detainer or warrant issued from that state, this petition is better adjudicated in the Northern District of New York and will be transferred there.

II. Background

In January 2003, in the United States District Court for the Eastern District of Virginia (Richmond), pursuant to a plea agreement, Sylvester plead guilty to Illegal Re-entry after Deportation; Misuse of a Social Security Account Number and Possession of a Firearm.*fn1 Sylvester was sentenced to imprisonment for a term of 84 months. Upon completion of his federal sentence, Sylvester states that the district court ordered that he "be surrendered to [the] federal marshal for deportation by [the] immigration department." (Doc. 1, Petition). Sylvester recites that "the state of New York, Division of parole now seeks custody of the applicant charging illegal re-entry as a violation of parole." (Id.) Petitioner argues that to allow the same would constitute a double jeopardy violation and conflict with his federal sentencing order.

III. Discussion

Whether New York has actually lodged a detainer against Sylvester is unclear from the petition. If one has been issued, Sylvester may use section 2241 to challenge a state detainer, see Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 488-89, 93 S.Ct. 1123, 1126, 35 L.Ed.2d 443 (1973). The proper respondent in such an action, however, would be the Attorney General of New York, "the person who exercises legal control with respect to the challenged 'custody.'" Rumsfeld v. Padilla, 542 U.S. 426, 438, 124 S.Ct. 2711, 2720, 159 L.Ed.2d 513 (2004).*fn2

As Sylvester is lodged within our jurisdiction, but challenges a potential New York state detainer, we have concurrent jurisdiction with the Northern District of New York over this petition.*fn3 Braden, supra, 410 U.S. at 499 n.15, 93 S.Ct. at 1131 n.15. However, since the records and witnesses relevant to the detainer are in the Northern District of New York, we will transfer the petition there pursuant to 28 U.S.C. § 1404(a).*fn4 Id.

See also Davis v. Fox, No. 07-570, 2007 WL 4591243 (E.D. Tex. Dec. 27, 2007)(transferring 2241 petition in the interest of justice to district court with jurisdiction over the officials who issued the detainer); George v. United States, No. 07-110, 2007 WL 3405420, N.D. W. Va. Nov. 9, 2007)(same); Ross v. Sedgwick County District Attorney's Office, 2007 WL 1577791 (W.D. Okla. May 31, 2007) (dismissing a 2241 petition challenging a detainer without prejudice to filing in the federal court with jurisdiction over the official who issued the detainer).

We will issue an appropriate order.

ORDER

AND NOW, this 23rd day of July, 2008, for the reasons set forth in the accompanying memorandum, it is ordered that:

1. The Clerk of Court is directed to transfer this action to the United States District Court for the Northern District of New York.

2. The Clerk of Court is directed to close this case.

William W. Caldwell United States District Judge


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