Manuel R. De La Cruz Disla v. KAREN F. HOGSTEN, Warden On Appeal From the United States District Court For the…

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NOT PRECEDENTIAL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

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According to the BOP’s website, Disla is housed at Northeast Ohio Correctional1
Center. See http://www.bop.gov/DataSource/execute/dsFacilityAddressLoc?
start=y&facilityCode=NEO.
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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

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In addition to the Ohio address affixed to the petition, the inmate account2
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.
Upon determining that it lacked jurisdiction, the District Court normally would3
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.
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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. His immediate custodian is the Warden at the Ohio2
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.

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