PUBLISH IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 95-4378 ________________________________
D.C. Docket No. 95-00484-CIV-WDF
FRANK VELASCO,
Petitioner-Appellant,
versus
DANIEL HORGAN, United States Marshal, Southern District of Florida,
Respondent-Appellee.
_________________________________________________________________ Appeal from the United States District Court for the Southern District of Florida _________________________________________________________________ (June 10, 1996)
Before HATCHETT and BLACK, Circuit Judges, and CLARK, Senior Circuit Judge.
HATCHETT, Circuit Judge:
Appellant, Frank Velasco, appeals the district court's
decision denying his petition for writ of habeas corpus. Because
Velasco has been removed to New York following the Southern
District of Florida's denial of habeas corpus, this district lacks jurisdiction to provide Velasco relief. Thus, this appeal
is moot. BACKGROUND
On February 2, l995, United States marshals arrested Velasco
in Florida on an indictment and complaint issued in the Southern
District of New York. Velasco made his initial appearance before
a magistrate judge in the Southern District of Florida under
Federal Rule of Criminal Procedure 40, and the government made an
application for detention. On February 6, l995, the magistrate
judge held a detention hearing, denied the government's request
for an order of detention, and ordered that the Marshal release
Velasco on bond. The magistrate judge, pursuant to Local Rules
of the United States District Court for the Southern District of
Florida, Magistrate Judge Rule 4(a)(2), stayed Velasco's release
order pending the government's decision whether to appeal. The
magistrate judge set Velasco's removal hearing for February l3,
l995.
Both the government and Velasco sought review of the
magistrate's release order but in different forums. On February
7, l995, the government, pursuant to l8 U.S.C. § 3l45(a),
appealed the magistrate's release order in the district court,
Southern District of New York. District Judge Tate (S.D.N.Y.)
held a telephonic hearing between the government and Velasco's
counsel and issued a stay of the Southern District of Florida
magistrate's release order. Subsequently, on February 9, l995, in the Court of Appeals for the Second Circuit, Velasco moved to
2 dissolve Judge Tate's stay order and for a writ of mandamus
directing the Southern District of New York to hold an immediate
hearing on the government's appeal of the magistrate's release
order. In an order dated February l4, l995, the Second Circuit
denied Velasco's motions in all respects. The Second Circuit's
decision allowed Judge Tate's stay of the release order to remain
in effect.
On February l0, l995, the district court in the Southern
District of Florida held a hearing on Velasco's emergency motion
to dissolve the automatic stay that the magistrate judge had
imposed. The government argued that as a result of the stay
order Judge Tate had imposed, the Southern District of Florida
lacked jurisdiction to consider the issue. On February 28, 1995,
the Southern District of Florida issued an order affirming the
magistrate's order and dissolving the automatic stay. That
order, however, did not address the stay Judge Tate had imposed.
Velasco posted the required bail, but the Marshal would not
release him because of the stay that Judge Tate issued on
February 7, l995. Consequently, Velasco filed a Petition for
Habeas Corpus alleging that because a valid order set the
conditions of bail, and because Velasco posted the required bail,
the Marshal violated Velasco's constitutional rights in refusing
to release him.
On March 20, l995, the Southern District of Florida issued
an order denying Velasco's petition for writ of habeas corpus. The district court stated that it did not have jurisdiction to
3 resolve the dispute between the district courts of the Southern
District of Florida and the Southern District of New York. That
same day, the magistrate judge issued a warrant to remove Velasco
in custody to New York. Velasco filed an immediate appeal of the
order denying habeas corpus relief and filed an emergency motion
to this court to stay his custodial transportation to New York
pending resolution of the pendant appeal. On that evening, a
panel of this court denied the emergency motion to stay custodial
transportation pending the appeal. Thereafter, the marshals
transported Velasco to New York. CONTENTIONS
Velasco contends that his removal to New York did not defeat
the Southern District of Florida court's jurisdiction and did not
moot this appeal. He contends that the Southern District of
Florida, as the arresting district, had jurisdiction and was
obliged to exercise it to grant him habeas corpus relief.
Velasco also contends that the Southern District of Florida
had full authority to set and review the terms of his pretrial
release while he remained in custody in that district. Velasco
argues that because the district court for the Southern District
of Florida affirmed the magistrate's order and the government
failed to appeal the affirmance, he should have been released on
bail.
The government contends that the removal of Velasco to New
York moots the one issue that he raised in the habeas corpus
action. The government, however, contends that even if this
4 court finds that jurisdiction existed in the district court, this
court lacks jurisdiction because Velasco's issue no longer
presents a live "case or controversy" under Article III of the
Constitution. Velasco's claim, the government argues, is not
likely to recur because Velasco has been transferred from the
Southern District of Florida to New York.
The government further contends that the district court
properly decided to refrain from deciding the dispute between the
Southern District of Florida and the Southern District of New
York concerning the appropriateness of Velasco's pretrial
detention because the Southern District of New York, where the
charges against Velasco remained pending, possessed original
jurisdiction over the magistrate's release order. ISSUES
The following issues are presented: (1) whether the Southern
District of Florida had jurisdiction over the habeas corpus
proceeding; and if so, (2) whether the district court should have
granted Velasco a writ of habeas corpus to enforce his pretrial
release orders. DISCUSSION
Velasco's removal to New York effectively divested this
court of jurisdiction because this court cannot provide him any
relief. We point out that at least one other circuit has been
faced with this issue. The Second Circuit held that an arresting
district, where a defendant remains incarcerated, should exercise jurisdiction over that defendant's habeas corpus petition
5 challenging a magistrate's removal warrant. United States v.
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PUBLISH IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________
No. 95-4378 ________________________________
D.C. Docket No. 95-00484-CIV-WDF
FRANK VELASCO,
Petitioner-Appellant,
versus
DANIEL HORGAN, United States Marshal, Southern District of Florida,
Respondent-Appellee.
_________________________________________________________________ Appeal from the United States District Court for the Southern District of Florida _________________________________________________________________ (June 10, 1996)
Before HATCHETT and BLACK, Circuit Judges, and CLARK, Senior Circuit Judge.
HATCHETT, Circuit Judge:
Appellant, Frank Velasco, appeals the district court's
decision denying his petition for writ of habeas corpus. Because
Velasco has been removed to New York following the Southern
District of Florida's denial of habeas corpus, this district lacks jurisdiction to provide Velasco relief. Thus, this appeal
is moot. BACKGROUND
On February 2, l995, United States marshals arrested Velasco
in Florida on an indictment and complaint issued in the Southern
District of New York. Velasco made his initial appearance before
a magistrate judge in the Southern District of Florida under
Federal Rule of Criminal Procedure 40, and the government made an
application for detention. On February 6, l995, the magistrate
judge held a detention hearing, denied the government's request
for an order of detention, and ordered that the Marshal release
Velasco on bond. The magistrate judge, pursuant to Local Rules
of the United States District Court for the Southern District of
Florida, Magistrate Judge Rule 4(a)(2), stayed Velasco's release
order pending the government's decision whether to appeal. The
magistrate judge set Velasco's removal hearing for February l3,
l995.
Both the government and Velasco sought review of the
magistrate's release order but in different forums. On February
7, l995, the government, pursuant to l8 U.S.C. § 3l45(a),
appealed the magistrate's release order in the district court,
Southern District of New York. District Judge Tate (S.D.N.Y.)
held a telephonic hearing between the government and Velasco's
counsel and issued a stay of the Southern District of Florida
magistrate's release order. Subsequently, on February 9, l995, in the Court of Appeals for the Second Circuit, Velasco moved to
2 dissolve Judge Tate's stay order and for a writ of mandamus
directing the Southern District of New York to hold an immediate
hearing on the government's appeal of the magistrate's release
order. In an order dated February l4, l995, the Second Circuit
denied Velasco's motions in all respects. The Second Circuit's
decision allowed Judge Tate's stay of the release order to remain
in effect.
On February l0, l995, the district court in the Southern
District of Florida held a hearing on Velasco's emergency motion
to dissolve the automatic stay that the magistrate judge had
imposed. The government argued that as a result of the stay
order Judge Tate had imposed, the Southern District of Florida
lacked jurisdiction to consider the issue. On February 28, 1995,
the Southern District of Florida issued an order affirming the
magistrate's order and dissolving the automatic stay. That
order, however, did not address the stay Judge Tate had imposed.
Velasco posted the required bail, but the Marshal would not
release him because of the stay that Judge Tate issued on
February 7, l995. Consequently, Velasco filed a Petition for
Habeas Corpus alleging that because a valid order set the
conditions of bail, and because Velasco posted the required bail,
the Marshal violated Velasco's constitutional rights in refusing
to release him.
On March 20, l995, the Southern District of Florida issued
an order denying Velasco's petition for writ of habeas corpus. The district court stated that it did not have jurisdiction to
3 resolve the dispute between the district courts of the Southern
District of Florida and the Southern District of New York. That
same day, the magistrate judge issued a warrant to remove Velasco
in custody to New York. Velasco filed an immediate appeal of the
order denying habeas corpus relief and filed an emergency motion
to this court to stay his custodial transportation to New York
pending resolution of the pendant appeal. On that evening, a
panel of this court denied the emergency motion to stay custodial
transportation pending the appeal. Thereafter, the marshals
transported Velasco to New York. CONTENTIONS
Velasco contends that his removal to New York did not defeat
the Southern District of Florida court's jurisdiction and did not
moot this appeal. He contends that the Southern District of
Florida, as the arresting district, had jurisdiction and was
obliged to exercise it to grant him habeas corpus relief.
Velasco also contends that the Southern District of Florida
had full authority to set and review the terms of his pretrial
release while he remained in custody in that district. Velasco
argues that because the district court for the Southern District
of Florida affirmed the magistrate's order and the government
failed to appeal the affirmance, he should have been released on
bail.
The government contends that the removal of Velasco to New
York moots the one issue that he raised in the habeas corpus
action. The government, however, contends that even if this
4 court finds that jurisdiction existed in the district court, this
court lacks jurisdiction because Velasco's issue no longer
presents a live "case or controversy" under Article III of the
Constitution. Velasco's claim, the government argues, is not
likely to recur because Velasco has been transferred from the
Southern District of Florida to New York.
The government further contends that the district court
properly decided to refrain from deciding the dispute between the
Southern District of Florida and the Southern District of New
York concerning the appropriateness of Velasco's pretrial
detention because the Southern District of New York, where the
charges against Velasco remained pending, possessed original
jurisdiction over the magistrate's release order. ISSUES
The following issues are presented: (1) whether the Southern
District of Florida had jurisdiction over the habeas corpus
proceeding; and if so, (2) whether the district court should have
granted Velasco a writ of habeas corpus to enforce his pretrial
release orders. DISCUSSION
Velasco's removal to New York effectively divested this
court of jurisdiction because this court cannot provide him any
relief. We point out that at least one other circuit has been
faced with this issue. The Second Circuit held that an arresting
district, where a defendant remains incarcerated, should exercise jurisdiction over that defendant's habeas corpus petition
5 challenging a magistrate's removal warrant. United States v. Plain, 748 F.2d 620 (llth Cir. l984); see also Roba v. United States, 604 F.2d 2l5 (2d Cir. l979) (holding that the district
court in the arresting district had jurisdiction to adjudicate
the merits of the petition).* CONCLUSION
For the foregoing reasons, this appeal is dismissed as moot. DISMISSED
* This appeal resulted in part from a Local Rule of the United States District Court for the Southern District of Florida, Magistrate Judge Rule 4(a)(2), which reads as follows:
Government Appeal of Bond. At the conclusion of a bond hearing pursuant to 18 U.S.C. § 3142 in which a Magistrate Judge has set a bond which will result in release of a defendant if the conditions of the bond are met, an announcement in open Court by the prosecutor that the government intends to appeal the bond to a District Judge shall result in an immediate stay of the bond set by the Magistrate Judge. Such stay shall continue until 5:00 p.m. that day, or in the event bond is set in open court after 5:00 p.m., until 9:30 a.m. the morning of the following business day, unless the prosecutor shall file a written notice of appeal with the Clerk, upon which the stay shall become permanent unless and until it is lifted by a District Judge. The notice of appeal may be summary in form and need not be typed, but it shall be followed on or before the close of the business day next following the day the bond was set by the filing of a detailed factual statement, in proper form, setting forth the grounds of the appeal.
Under Magistrate Judge Rule 4(a)(2), the government can simply file an informal notice of appeal and nullify a magistrate's release order, thus, creating an automatic stay. The Southern District of Florida should revisit Magistrate Judge Rule 4(a)(2) or, at the least, study the situation this case presents.