                    United States Court of Appeals,

                             Eleventh Circuit.

                                  No. 95-4378.

                  Frank VELASCO, Petitioner-Appellant,

                                        v.

   Daniel HORGAN, United States Marshal, Southern District of
Florida, Respondent-Appellee.

                              June 10, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 95-00484 CIV-WDF), Wilkie D. Ferguson,
Jr., Judge.

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, 1995, 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, 1995, 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 13,

1995.

     Both     the    government    and   Velasco   sought    review   of   the

magistrate's release order but in different forums. On February 7,

1995, the government, pursuant to 18 U.S.C. § 3145(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, 1995, in the Court of Appeals

for the Second Circuit, Velasco moved to 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 14,

1995, 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 10, 1995, 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, 1995.      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, 1995, 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 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 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

challenging a magistrate's removal warrant.             United States v.

Plain, 748 F.2d 620 (11th Cir.1984);           see also Roba v. United
States, 604 F.2d 215 (2d Cir.1979) (holding that the district court

in the arresting district had jurisdiction to adjudicate the merits

of the petition).*

     *
      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
                      CONCLUSION

For the foregoing reasons, this appeal is dismissed as moot.
DISMISSED.




Magistrate Judge Rule 4(a)(2) or, at the least, study the
situation this case presents.
