                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-2005

De La Cruz Disla v. Hogsten
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4488




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"De La Cruz Disla v. Hogsten" (2005). 2005 Decisions. Paper 195.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/195


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                                                                             BPS-46
                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       NO. 05-4488
                                      ____________

                          MANUEL R. DE LA CRUZ DISLA,
                                            Appellant

                                            v.

                             KAREN F. HOGSTEN, Warden
                              ________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                             (D.C. Civil No. 05-cv-01857)
                      District Judge: Honorable Edwin M. Kosik
                             ________________________

                       Submitted For Possible Summary Action
                     Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  November 10, 2005

           Before: RENDELL, AMBRO and GREENBERG, Circuit Judges.

                               (Filed November 30, 2005)
                                     _____________

                               OPINION OF THE COURT
                                   _____________

PER CURIAM

       Manuel De La Cruz Disla appeals from the District Court’s order denying his

habeas corpus petition filed pursuant to 28 U.S.C. § 2241. In his habeas petition, Disla

seeks to challenge the calculation of his good conduct time (GCT) by the Bureau of
Prisons (BOP). For the following reasons, we will vacate the District Court’s order and

remand with instructions to dismiss the petition for lack of habeas jurisdiction.

       In November 2004, Disla was sentenced in the Eastern District of New York to 37

months in prison for importing cocaine. Disla served a portion of his sentence at FCI

Allenwood Low in White Deer, Pennsylvania. While at FCI Allenwood Low, the BOP

calculated Disla’s GCT based on the time he will actually serve in prison, not on the

length of the sentence imposed, and informed Disla his projected release date.

       In September 2005, Disla attempted to challenge the BOP’s method of calculation

by filing the current habeas corpus petition in the Middle District of Pennsylvania. In his

petition, Disla names Karen F. Hogsten, Warden at FCI Allenwood Low, as respondent.

At the bottom of his petition, Disla writes his address as “NEOCC,” Youngstown, Ohio.1

In denying Disla’s petition, the District Court cited O’Donald v. Johns, 402 F.3d 172 (3d

Cir. 2005), as controlling precedent rejecting Disla’s position.

       Although the District Court is correct that O’Donald governs the GCT issue raised

in Disla’s petition, the District Court apparently overlooked that he is housed at a

correctional facility outside the Middle District of Pennsylvania. The District Court thus

neglected to recognize that Disla failed to name his immediate custodian as respondent.

Under the federal habeas statute, the proper respondent is the person who has immediate



  1
    According to the BOP’s website, Disla is housed at Northeast Ohio Correctional
Center. See http://www.bop.gov/DataSource/execute/dsFacilityAddressLoc?
start=y&facilityCode=NEO.

                                              2
custody over the petitioner. See 28 U.S.C. §§ 2242, 2243; Rumsfeld v. Padilla, 124 S. Ct.

2711, 2720 (2004). As we have previously held, the immediate custodian is the warden

of the facility where the petitioner is held because that person “has day-to-day control

over the prisoner” and can “produce the actual body.” Yi v. Maugans, 24 F.3d 500, 507

(3d Cir. 1994).

       At the time Disla filed his petition, he was in custody at a facility in Ohio, not in

the Middle District of Pennsylvania.2 His immediate custodian is the Warden at the Ohio

facility, not the Warden at FCI Allenwood Low. The District Court’s habeas jurisdiction

is limited to the Middle District of Pennsylvania. Id. Accordingly, the District Court

should have dismissed Disla’s petition for lack of habeas jurisdiction.3

       Because the District Court lacked habeas jurisdiction to consider Disla’s petition,

we will summarily vacate the District Court’s order. We will remand with instructions to

dismiss the petition for lack of jurisdiction.




  2
        In addition to the Ohio address affixed to the petition, the inmate account
statement accompanying Disla’s application to proceed in forma pauperis, filed
concurrently with the habeas petition, is certified by the business manager at the Ohio
facility.
  3
        Upon determining that it lacked jurisdiction, the District Court normally would
consider whether the interests of justice require transferring Disla’s habeas petition to the
district court having jurisdiction. See 28 U.S.C. § 1631. Recently, the Sixth Circuit (the
judicial circuit which encompasses Ohio) expressly adopted our holding in O’Donald and
rejected Disla’s position. See Petty v. Stine, 424 F.3d 509, 510 (6th Cir. 2005).
Accordingly, transferring Disla’s habeas petition to a district court in Ohio would not
serve the interests of justice.

                                                 3
