Unpublished Dispositionfrederick Upton Mclellan, Petitioner-appellant, v. Richard L. Dugger, Secretary Florida Department Ofcorrections, Respondent-appellee, 844 F.2d 789 (6th Cir. 1988)

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U.S. Court of Appeals for the Sixth Circuit - 844 F.2d 789 (6th Cir. 1988) April 12, 1988

Before WELLFORD and DAVID A. NELSON, Circuit Judges, and JOHN W. PECK, Senior Circuit Judge.


ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record, brief and appellant's motion for appointment of counsel or for leave to personally appear at oral argument, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner filed a 28 U.S.C. § 2254 habeas corpus petition in the United States District Court for the Northern District of Ohio on the basis that he was illegally extradited from Ohio to Florida in 1984. The district court treated the habeas corpus petition as having been filed pursuant to 28 U.S.C. § 2241. Petitioner appealed from the district court's order filed July 6, 1987, dismissing the habeas corpus petition as having been filed in the wrong court.

A court can issue a writ of habeas corpus only when it has jurisdiction over the petitioner's custodian. Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973); Pressly v. Gregory, 831 F.2d 514, 518-19 (4th Cir. 1987). In the instant case, the District Court for the Northern District of Ohio did not have jurisdiction over petitioner's Florida custodian.

It is ORDERED that the motion for appointment of counsel or for leave to personally appear at oral argument be denied and the judgment of the district court be and hereby is affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.