             Case: 12-16498   Date Filed: 09/05/2014   Page: 1 of 4


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-16498
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:12-cv-22107-FAM



ABEL DIAZ,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                              (September 5, 2014)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 12-16498       Date Filed: 09/05/2014       Page: 2 of 4


      Abel Diaz, a federal prisoner proceeding pro se, appeals the district court’s

dismissal of his 28 U.S.C. § 2241 petition for a writ of habeas corpus. Diaz is

serving a sentence of 30 years’ imprisonment after his conviction on conspiracy,

drug and gun charges in the Southern District of Florida. He was incarcerated in

Inez, Kentucky when he filed his petition in the Southern District of Florida. He

had previously filed a 28 U.S.C. § 2255 motion to vacate in October 2003. The

district court dismissed Diaz’s petition on the basis that he was not permitted to file

a second or successive § 2255 motion, and he could not proceed through § 2241

because he had not satisfied the requirements of § 2255(e)’s savings clause.

      On appeal, Diaz argues that the sentencing court plainly erred by applying

enhanced statutory penalties to his conviction for conspiracy to possess cocaine

where the jury had not specifically determined the drug amount that was involved,

in violation of Apprendi1. He asserts that he should be permitted to raise his claim

as it meets the requirements of the savings clause. He additionally argues that the

government’s failure to prove a specific drug amount beyond a reasonable doubt

violated DePierre2, which he contends is retroactively applicable to his case.

Finally, he requests that we consider the reasoning in Alleyne3 in evaluating the

merits of his claim.


      1
        Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
      2
        DePierre v. United States, 564 U.S. __, 131 S. Ct. 2225 (2011).
      3
        Alleyne v. United States, 570 U.S. __, 133 S. Ct. 2151 (2013).
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      “We review de novo questions concerning the jurisdiction of the district

court.” United States v. Oliver, 148 F.3d 1274, 1275 (11th Cir. 1998) (per curiam).

A § 2241 petition by a federal prisoner must be brought in the district where the

inmate is incarcerated. Rumsfeld v. Padilla, 542 U.S. 426, 443–44, 124 S. Ct.

2711, 2722–23 (2004).

      In Rumsfeld, the Supreme Court explained that the proper respondent to a

habeas petition is the person who has custody over the petitioner “with the ability

to produce the prisoner’s body before the habeas court.” Id. at 434–35, 124 S. Ct.

at 2717. It explained that the general rule for habeas petitions is that jurisdiction

lies solely in the district of confinement. Id. at 443, 124 S.Ct. at 2722. Specific to

§ 2241 petitions, the Court directed that a petitioner seeking to challenge his

present physical custody “should name his warden as respondent and file the

petition in the district of confinement.” Id. at 447, 124 S.Ct. at 2724. The Court

emphasized that there was not a single case in which it had deviated from the rule

that a habeas petitioner challenging his present physical custody was required to

name his immediate custodian as respondent and file his petition in the district of

his confinement. Id. at 449–50, 124 S. Ct. at 2726.

      It is undisputed that Diaz was incarcerated in Kentucky at the time he filed

his § 2241 petition in the Southern District of Florida. In his reply brief filed on 23

May 2014, Diaz lists his current incarceration as F.C.I. Bennetsville, Bennettsville,


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SC, 29512. Thus, the district court lacked jurisdiction to review his petition

because he was not incarcerated in that district. See Rumsfeld, 542 U.S. at 443–44,

124 S. Ct. at 2722–23. Accordingly, we vacate the district court’s order and

remand with instructions to transfer the case to the appropriate district court.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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