U. S. A. ex rel. Ruffin v. Mancusi

300 F. Supp. 686 | E.D.N.Y | 1969

MEMORANDUM AND ORDER

JUDD, District Judge.

Petitioner seeks a writ of habeas corpus. He was sentenced by the Supreme Court, Bronx County, on March 30, 1965 to ten to twenty years imprisonment and is presently incarcerated in Attica State Prison, Attica, New York.

Proper venue for this application lies only in the Western District of New York, where the petitioner is in custody, or in the Southern District, within which the petitioner was convicted and sentenced. 28 U.S.C. § 2241(d). Enforcement of the venue requirement is particularly appropriate here, since the petition showed that two prior applications have been filed in the Southern District. These are stated to be Docket Numbers 67 Civil 4725 and 68 Civil 2598.

While this court is not the proper District under either alternative of § 2241(d), it has jurisdiction to transfer the proceeding to a proper District. 28 U.S.C. § 1406(a). Section 2241(d) may be considered to establish proper venue rather than jurisdiction. Power to transfer does not require even that personal jurisdiction have been obtained. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962). In the present case, service of process has not yet been made, but personal jurisdiction could be obtained here because the respondent is subject to service anywhere within the State of New York. F.R.Civ. P. 4(f). Section 2241(d) merely indicates the District in which the application may be most expeditiously considered. Since this application has been filed in the “wrong” venue, it may be transferred in the interest of justice to one of the Districts in which it could have been brought. Dismissal of the petition would be a “time consuming and justice-defeating” technicality, as the Supreme Court said in Goldlawr (369 U.S. at 467, 82 S.Ct. 913).

The petition is ordered transferred to the United States District Court for the Southern District of New York.