MEMORANDUM AND ORDER TRANSFERRING CASE TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK PURSUANT TO 28 U.S.C. § 1406(a)

COLLINGS, United States Magistrate Judge.

Petitioner Aaron Amartei Commey ("Commey") has filed a Petition for a Writ of Habeas Corpus (#1) in the United States District Court for the District of Massachusetts. The respondent is Jeff Grondolsky who is Warden of the Federal Medical Center, Devens, Massachusetts ("FMC-Devens"). The petition was filed at a time when Commey was incarcerated at FMC-Devens. He has subsequently been transferred to the Federal Medical Center, Springfield, Missouri and has, to date, remained in custody at that institution.

The reason for Commey's incarceration is that in a criminal case in filed in the Eastern District of New York, Commey was found not guilty by reason of insanity and was committed to the custody of the Attorney General pursuant to 18 U.S.C. § 4243(e). In that Court, it is averred that he has filed a motion for a release hearing in the criminal case, but it has not yet been acted upon. See Petition, #1 at ¶ 6, Government's Opposition, #15 at p. 2.

Commey's claim in the instant petition is simple and straightforward, i.e., that his

Petition, #1 at ¶ 4.

He seeks a "hearing" and that he ". . . be ordered discharged from the detention and restraint described in this application." Petition, #1 at p. 2. Petitioner makes the same points in a Motion for Preliminary Injunction (#17) in which he seeks release pending final adjudication of the Petition.2

The disposition of this case in the District of Massachusetts is governed by the case of Archuleta v. Hedrick, 365 F.3d 644 (8th Cir.2004). When a person is committed pursuant to 18 U.S.C. § 4243 and challenges his continued confinement under that statute, he ". . . may, at any time during [the] confinement, file with the court that ordered the commitment a motion for a hearing to determine whether the person should be discharged . . ." 18 U.S.C. § 4247(h) (Emphasis added). See Archuleta, 365 F.3d at 649. Thus, only the United States District Court for the Eastern District of New York ". . . may grant the statutory relief [Commey] seeks, either conditional or unconditional release." Id. (citing 18 U.S.C. § 4247 and United States v. Budell, 187 F.3d 1137 (9th Cir.1999)). Further, the District Court in the Eastern District of New York ". . . has discretion to take jurisdiction over [Commey's] pro se habeas petition under either 18 U.S.C. § 4247(g), or 18 U.S.C. § 4247(h), or both. . . [and] in these circumstances, a transfer of the petition under 28 U.S.C. § 1406(a) is both permissible and appropriate." Archuleta, 365 F.3d at 649.

For all the reasons stated, it is ORDERED that the above-styled cause be, and the same hereby is, TRANSFERRED to the United States District Court for the Eastern District of New York at Brooklyn pursuant to 28 U.S.C. § 1406(a). Courtroom Deputy Clerk Noreen A. Russo, Esquire, is directed to effectuate the transfer.