GLD-347                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1764
                                      ___________

                              YAKOV G. DRABOVSKIY,
                                                Appellant

                                            v.

                       WARDEN OF THE FCI ALLENWOOD
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 3-13-cv-00383)
                    District Judge: Honorable Richard P. Conaboy
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     July 25, 2013
             Before: FUENTES, FISHER and VANASKIE, Circuit Judges

                             (Opinion filed: August 6, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

       In the United States District Court for the Western District of Louisiana, Yakov G.

Drabovskiy was convicted, after a jury trial, of twenty counts of violating 8 U.S.C.

§ 1253(a)(1)(B) for failing to depart after having been ordered removed. United States v.

Drabovskiy, W.D. La. Crim. No. 2:09-cr-00146. On April 6, 2010, he was sentenced to
seventy-eight months in prison (with credit for time served since his arrest) and a term of

supervised release. Drabovskiy appealed the judgment to the Fifth Circuit Court of

Appeals.

       While the appeal was pending, Drabovskiy, housed at the Federal Correctional

Institution at Allenwood, filed two habeas corpus petitions in the United States District

Court for the Middle District of Pennsylvania (M.D. Pa. Civ. Nos. 4:10-cv-01830 & 4:10-

cv-02226). In the first, he challenged his conviction for failure to depart and explained

that 28 U.S.C. § 2241 was “designed for QUICK liberation.” The District Court

construed the petition as filed under § 2241 and denied it without prejudice because

Drabovskiy had not exhausted his direct appeal and presented claims not appropriately

brought pursuant to § 2241 (the challenge, the District Court explained, should have been

initiated in the district of conviction as a motion under 28 U.S.C. § 2255). The District

Court also ruled that the challenge was premature insomuch as it challenged immigration

custody because Drabovskiy was not in immigration custody.

       In the second petition, Drabovskiy again challenged his conviction. The District

Court ruled that the petition was a successive petition under 28 U.S.C. § 2244(a) and that

the claims were still unexhausted (because the direct appeal then remained pending), still

misdirected (because they should have been brought in a § 2255 motion in the district of

conviction), and still premature as to any immigration custody issues.

       The Fifth Circuit Court of Appeals affirmed the judgment in Drabvoskiy’s

criminal case in June 2011. See United States v. Drabovskiy, 435 F. App’x 319 (5th Cir.
                                             2
2011) (per curiam). It does not appear that Drabovskiy sought relief under § 2255 in the

District Court for the Western District of Louisiana. Instead, in February 2013,

Drabovskiy filed, in the District Court for the Middle District of Pennsylvania, another

challenge to his conviction for failure to depart. He also argued that the writ of habeas

corpus must not be suspended.1

       A Magistrate Judge recommended that Drabovskiy’s case be dismissed. The

Magistrate Judge described his filing as an unauthorized successive petition under

§ 2244(a) and a petition that was not properly brought under § 2241 because it needed to

be presented as a § 2255 motion in the district of conviction. The Magistrate Judge

further stated that to the extent that Drabovskiy sought to challenge any immigration

detention, any challenge to future immigration detention was premature where he was not

yet in the custody of immigration officials and any challenge to past detention was moot

where he had already been released from it. After Drabovskiy filed objections in which

he stated, among other things, that he “does not challenge this immigrational [sic]

problems in [his] petition,” the District Court adopted the Magistrate Judge’s report and

recommendation with a modification to not consider the immigration-custody issues.

The District Court dismissed the action without prejudice to Drabovskiy’s pursuit of the

other legal avenues described in the report. Drabovskiy then filed a motion to amend his




1
 In doing so, he contended that a suspension-of-the-writ claim “should not be confused
with 2241, 2254, or 2255 petitions.”
                                             3
filing to add a claim about the indictment in his criminal case, which the District Court

denied.

       Drabovskiy appeals. The parties were notified that this case was slated for

possible summary action. In response, Drabovskiy asks that we reverse the District

Court’s ruling and order the District Court to consider the merits of his case. He also

presents a “motion for the default and a default judgment,” on the basis that the appellee

has not filed any argument relating to this appeal, and a “motion for release pending

appeals.”

       Our review of the District Court’s legal conclusions is plenary, and our

consideration of its factual findings is under a clearly erroneous standard of review. See

Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam). We

review its exercises of discretion for abuse thereof. See Grayson v. Mayview State

Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

          The District Court properly determined that it was without jurisdiction to

considered Drabovskiy’s filing as a § 2241 motion. Drabovskiy cannot bring his claims

under § 2241, because a motion to challenge his conviction and sentence pursuant to 28

U.S.C. § 2255 is not “inadequate or ineffective.” 28 U.S.C. § 2255. However, the

District Court did not consider whether the filing was a § 2255 motion. Although

Drabovskiy asserts that his filing is some sort of habeas petition not covered by §§ 2241,

2254, or 2255, in substance, his filing is a § 2255 motion. See Lewis v. Att’y Gen. of the

U.S., 878 F.2d 714, 722 n.20 (3d Cir. 1989) (requiring that a pro se pleading be “judged
                                               4
by its substance rather than according to its form or label”). He challenges the whole of

his criminal case, from the indictment to the jury instructions, claiming trial court error

and prosecutorial misconduct in between. Such a § 2255 motion, his first after his direct

appeal (where it appears no § 2255 motion has been considered on the merits), is

appropriately entertained only by the court that imposed his sentence. See 28 U.S.C.

§ 2255(a).

       So that the court that imposed Drabovskiy’s sentence may consider his challenge

to it, we vacate the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.

10.6. We remand with instructions for the District Court to transfer Drabovskiy’s § 2255

motion (ECF No. 1) and his proposed amendment (in his motion to amend, ECF No. 7) to

the United States District Court for the Western District of Louisiana. See 28 U.S.C.

§ 1631 (“[T]he court shall, if it is in the interest of justice, transfer such action or appeal

to any other such court in which the action or appeal could have been brought at the time

it was filed.”). Drabovskiy’s request that we reverse the District Court, his “motion for

the default and a default judgment,” and his “motion for release pending appeals” are

denied.




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