Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2007

Russell v. Levi
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3967




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Recommended Citation
"Russell v. Levi" (2007). 2007 Decisions. Paper 1211.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1211


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BLD-93                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 06-3967
                                   ________________

                                 JAMES A. RUSSELL,

                                            Appellant

                                             v.

                               TROY LEVI, Warden;
                              ALBERTO GONZALES,
                                 Attorney General
                      ____________________________________

                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 06-cv-02643)
                      District Judge: Honorable Freda L. Wolfson
                    _______________________________________


     Submitted For Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 January 5, 2007

               Before: MCKEE, FUENTES AND ROTH, Circuit Judges.

                                 (Filed: April 25, 2007)

                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      James Russell, awaiting trial on a federal charge of mailing a threatening

communication, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in
the United States District Court for the District of New Jersey. In his petition to

challenge his indictment as “void ab initio,” he plainly stated that he was incarcerated in

the Federal Detention Center located in Philadelphia, Pennsylvania. He did not identify

the court in which he would be tried.

       Because Russell was being held in custody in Philadelphia, within the Eastern

District of Pennsylvania and outside the District of New Jersey, the District Court

dismissed Russell’s petition for lack of jurisdiction. The District Court concluded that it

could not transfer Russell’s petition because Russell had not identified the district court of

his prosecution, and noted that Russell could bring his claim at any stage of his federal

criminal proceedings. Russell filed a motion for reconsideration, which the District Court

denied.1 Russell appeals and moves for summary action on his appeal.

       We deny Russell’s motion for summary action, but we will summarily affirm the

District Court’s order because no substantial question is presented on appeal. See Local

Rule 27.4; I.O.P. 10.6. The District Court, sitting in the District of New Jersey while

Russell was sitting in prison in the Eastern District of Pennsylvania, lacked jurisdiction

over Russell’s petition. See 28 U.S.C. § 2241(a); Yi v. Maugans, 

, 507 (3d

Cir. 1994) (“A district court’s habeas corpus jurisdiction is territorially limited and



       1
         Russell also submitted a letter to the District Court, noting that his criminal case
was pending in the District of New Jersey. In response, the District Court amended its
first opinion to note that Russell’s criminal prosecution proceeded in the District of New
Jersey. The District Court determined that the location of the prosecution did not affect
the dismissal for lack of jurisdiction.

                                              2
extends only to persons detained and custodial officials acting within the boundaries of

that district.”); but see Rumsfeld v. Padilla, 

, 440-41 (2004) (describing a

possible departure from the ordinary rule in circumstances different from those in this

case, namely a prisoner transfer after proper filing).

       Russell, who submitted argument in support of his appeal, claims that the District

Court erred by not transferring his petition to the appropriate district court pursuant to 28

U.S.C. § 1631. The determination whether a case should be transferred in the interest of

justice, see 28 U.S.C. § 1631, “is generally committed to the discretion of the District

Court in the first instance.” See Island Insteel Sys. v. Waters, 

, 218 (3d Cir.

2002). The District Court was within the bounds of its discretion in this case. Although

Russell later apprised the District Court of the location of his prosecution, he did not

include the pertinent information in his petition. Furthermore, as the District Court noted,

Russell can advance his “void ab initio” claim at any stage of his criminal proceedings.

       For the reasons stated, we will affirm the District Court’s judgment.




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