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.