Peon v. Thornburgh, 765 F. Supp. 155 (S.D.N.Y. 1991)

*156 Lazaro Dreke Peon, pro se.

James A. O'Brien, III, Sp. Asst. U.S. Atty., S.D.N.Y., New York City, for respondent.

STANTON, District Judge.

Petitioner Lazaro Dreke Peon seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1988), asserting that he is being held by the Immigration and Naturalization Service unlawfully. Respondent argues that since petitioner is incarcerated at the Federal Correctional Institute in Raybrook, New York, which is in the Northern District of New York, this court has no jurisdiction to consider the petition.

A petition for habeas corpus must be brought against the petitioner's custodian, and the court considering the petition must have jurisdiction over that custodian. Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976); see also Braden v. 30th Judicial Cir. Ct., 410 U.S. 484, 93 S. Ct. 1123, 35 L. Ed. 2d 443 (1973). In this case, petitioner's custodian is Raybrook's warden, rather than the Attorney General. See Billiteri, 541 F.2d at 948. Since Raybrook is located in the Northern District of New York, the petition must be brought there. See ibid.; In re Tripati, 836 F.2d 1406, 1407 (D.C.Cir.1988) (per curiam) (petition must be brought in district in which petitioner's custodian is located); Hassain v. Johnson, 790 F.2d 1420, 1420 (9th Cir.1986) (per curiam) (same), cert. denied, 479 U.S. 1038, 107 S. Ct. 893, 93 L. Ed. 2d 845 (1987).

However, as respondent suggests, in the interest of justice, to avoid unnecessary delay of consideration of the petition's merits, this action should be transferred to the United States District Court for the Northern District of New York pursuant to 28 U.S.C. § 1406(a) (1988), rather than dismissed.

Accordingly, the clerk of the court is ordered to transfer this action to the United States District Court for the Northern District of New York.