Case: Document: 53 Page: 1 02/28/ United States Court of Appeals FOR THE SECOND CIRCUIT. Docket No

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1 Case: Document: 53 Page: 1 02/28/ To Be Argued By: NICHOLAS J. LEWIN United States Court of Appeals FOR THE SECOND CIRCUIT Docket No UNITED STATES OF AMERICA, v. Appellee, RAMZI AHMED YOUSEF, Defendant-Appellant, (caption continued on inside cover) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF FOR THE UNITED STATES OF AMERICA PREET BHARARA, United States Attorney for the Southern District of New York, Attorney for the United States of America. NICHOLAS J. LEWIN, ANDREW L. FISH, Assistant United States Attorneys, Of Counsel.

2 Case: Document: 53 Page: 2 02/28/ MOHAMMAD A. SALAMEH, NIDAL AYYAD, MAHMUD ABOUHALIMA, AKA Mahmoud Abu Halima, BILAL ALKAISI, AKA Bilal Elqisi, AHMAD MOHAMMAD AJAJ, AKA Khurram Khan, ABDUL RAHMAN YASIN, AKA Aboud, ABDUL HAKIM MURAD, AKA Saeed Ahmed, EYAD ISMOIL, AKA Eyad Ismail, WALI KHAN AMIN SHAH, AKA Grabi Ibrahim Hahsen, KHALID SKEIKH MOHAMMED, AKA Mukhtar, AKA Mukhtar al Baluchi, AKA Al-Mukh, AKA Abdulrahman Abdullah al-ghamdi, AKA Salem Ali, WALID BIN ATTASH, AKA Khallid Bin Attash, AKA Saleen Saeed, MOHAMMED YOUSAF, AKA Tawfig Muhammed Salih Rashid, AKA Silver, RAMZI BIN AL-SHIBH, AKA Abu Ubaydah, AKA Ahad Abdollahi Sabet, ALI ABDUL AZIZ ALI, AKA Aliosh, AKA Ali A, AKA ISAM MANSUR, AKA Ammar al-baluchi, AKA Hani, MUSTAFA AL-HAWSAWI, AKA Hashem Abdulraham, AKA Hashem Abdollahi, AKA Mustafa Ahmed, AKA Zaher, AKA Khal, Defendants.

3 Case: Document: 53 Page: 3 02/28/ TABLE OF CONTENTS PAGE Preliminary Statement Statement of Facts A. The Offense Conduct B. Post-Conviction Litigation in the District of Colorado C. Yousef s Attempt to Challenge the SAMs in the Southern District of New York D. The District Court s Orders ARGUMENT: POINT I Yousef s Appeal Should Be Dismissed for Lack of Appellate Jurisdiction POINT II The District Court Properly Transferred Yousef s Petition to the District of Colorado A. Applicable Law B. Discussion POINT III This Court Lacks Jurisdiction to Consider Yousef s Claim Regarding the Purported Denial of Criminal Justice Act Funds CONCLUSION

4 Case: Document: 53 Page: 4 02/28/ ii PAGE TABLE OF AUTHORITIES Cases: Abner v. Secretary of Department of Homeland Security, 2006 WL (D. Conn. June 19, 2006) Billiteri v. United States Board of Parole, 541 F.2d 938 (2d Cir. 1976) Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484 (1973) Carballo v. LaManna, 2006 WL (D.S.C. Nov. 6, 2006) Carbo v. United States, 364 U.S. 611 (1961) Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988) Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) Cruz v. Ridge, 383 F.3d 62 (2d Cir. 2004) , 11 Evans v. United States, 2010 WL (E.D.N.Y. May 17, 2010) , 16

5 Case: Document: 53 Page: 5 02/28/ iii PAGE Gustafson v. Williams, 2010 WL (D. Nev. 2010) Jabarah v. Garcia, 2010 WL Jabarah v. Garcia, 2010 WL (S.D.N.Y. Sept. 30, 2010) Jiminian v. Nash, 245 F.3d 144 (2d Cir. 2001) Levine v. Apker, 455 F.3d 71 (2d Cir. 2006) , 15 Liriano v. United States, 95 F.3d 119 (2d Cir. 1996) Middlebrooks v. Smith, 735 F.2d 431 (11th Cir. 1984) Murphy v. Reid, 332 F.3d 82 (2d Cir. 2003) , 11 Poe v. United States, 468 F.3d 473 (7th Cir. 2006) , 20 Poindexter v. Nash, 333 F.3d 372 (2d Cir. 2003) Rumsfeld v. Padilla, 542 U.S. 426 (2004) Santulli v. United States, 2003 WL (S.D.N.Y. June 25, 2003)... 14

6 Case: Document: 53 Page: 6 02/28/ iv PAGE Ulloa v. Ledezma, 2009 WL (W.D. Okla. July 28, 2009) United States v. Hashmi, 621 F. Supp. 2d 76 (S.D.N.Y. 2008) United States v. Little, 392 F.3d 671 (4th Cir. 2004) United States v. Rahman, 189 F.3d 88 (2d Cir. 1999) United States v. Salameh, 152 F.3d 88 (2d Cir. 1998) United States v. Salameh, 261 F.3d 271 (2d Cir. 2001) United States v. Scott, 803 F.2d 1095 (10th Cir. 1986) United States v. Yousef, 327 F.3d 56 (2d Cir. 2003) , 5, 6, 7 United States v. Yousef, 395 F.3d 76 (2d Cir. 2005) , 18, 19 Yousef v. Reno, 254 F.3d 1214 (10th Cir. 2001) , 4, 8, 14 Statutes & Rules: 18 U.S.C. 3006A U.S.C U.S.C

7 Case: Document: 53 Page: 7 02/28/ v PAGE 28 U.S.C. 2241(a) U.S.C U.S.C. 2241(a) U.S.C. 3006A U.S.C. 1997e(a) Fed. R. Civ. P Rule 1(b), Rules Governing Section 2254 Cases Rule 5(a), Rules Governing Section 2254 Cases Rule 12, Rules Governing Section 2254 Cases Rule 5(a), Rules Governing Section 2255 Cases

8 Case: Document: 53 Page: 8 02/28/ FOR THE SECOND CIRCUIT Docket No UNITED STATES OF AMERICA, -v.- Appellee, RAMZI AHMED YOUSEF, Defendant-Appellant, MOHAMMAD A. SALAMEH, NIDAL AYYAD, MAHMUD ABOUHALIMA, AKA Mahmoud Abu Halima, BILAL ALKAISI, AKA Bilal Elqisi, AHMAD MOHAMMAD AJAJ, AKA Khurram Khan, ABDUL RAHMAN YASIN, AKA Aboud, ABDUL HAKIM MURAD, AKA Saeed Ahmed, EYAD ISMOIL, AKA Eyad Ismail, WALI KHAN AMIN SHAH, AKA Grabi Ibrahim Hahsen, KHALID SKEIKH MOHAMMED, AKA Mukhtar, AKA Mukhtar al Baluchi, AKA Al-Mukh, AKA Abdulrahman Abdullah al-ghamdi, AKA Salem Ali, WALID BIN ATTASH, AKA Khallid Bin Attash, AKA Saleen Saeed, MOHAMMED YOUSAF, AKA Tawfig Muhammed Salih Rashid, AKA Silver, RAMZI BIN AL-SHIBH, AKA Abu Ubaydah, AKA Ahad Abdollahi Sabet, ALI ABDUL AZIZ ALI, AKA Aliosh, AKA Ali A, AKA Isam Mansur, AKA Ammar al-baluchi, AKA Hani, MUSTAFA AL-HAWSAWI, AKA

9 Case: Document: 53 Page: 9 02/28/ Hashem Abdulraham, AKA Hashem Abdollahi, AKA Mustafa Ahmed, AKA Zaher, AKA Khal, Defendants. BRIEF FOR THE UNITED STATES OF AMERICA Preliminary Statement Ramzi Yousef appeals from an order entered on July 22, 2011, in the United States District Court for the Southern District of New York, by the Honorable Kevin T. Duffy, United States District Judge, transferring his petition for a writ of habeas corpus to the United States District Court for the District of Colorado. Indictment S12 93 Cr. 180 (KTD) was filed on February 21, 1996, in 20 counts. Counts One through Eleven charged Yousef and one co-conspirator with various crimes relating to the February 1993 bombing of the World Trade Center. Counts Twelve through Nineteen charged Yousef and two co-conspirators with various offenses arising from their conspiracy to bomb United * States airliners in Southeast Asia in 1994 and Trial of Yousef and two co-conspirators on the airline bombing charges commenced on May 29, 1996, and concluded on * Count Twenty charged another co-conspirator with attempted escape, in violation of Title 18, United States Code, Section 751(a).

10 Case: Document: 53 Page: 10 02/28/ September 5, 1996, when the jury found all three defendants guilty on all counts. Trial of Yousef and one coconspirator on the World Trade Center charges commenced on July 15, 1997, and concluded on November 12, 1997, when the jury found both defendants guilty on all counts. On January 8, 1998, Judge Duffy sentenced Yousef to a total of 180 years imprisonment on the charges arising from the World Trade Center bombing (Counts One through Eight), plus two consecutive 30-year terms on the related Section 924(c) charges (Counts Nine and Ten), for a total of 240 years. In addition, Judge Duffy sentenced Yousef to a consecutive term of life imprisonment on the airline bombing charges (Counts Twelve through Sixteen and Count Nineteen), plus two additional consecutive terms of 30 years each on the related Section 924(c) charges (Counts Seventeen and Eighteen). Judge Duffy also imposed a five-year term of supervised release, a $4.5 million fine, and the mandatory special assessments, and ordered restitution in the amount of $250 million. This Court affirmed Yousef s conviction and sentence. See United States v. Yousef, 327 F.3d 56 (2d Cir. 2003). On September 17, 1998, Yousef, represented by counsel, filed in the United States District Court for the District of Colorado a Bivens action for damages and for declaratory and injunctive relief relating to his conditions of confinement specifically, to his being subject to Special Administrative Measures ( SAMs ). See generally Yousef v. Reno, 254 F.3d 1214 (10th Cir. 2001). The Colorado district court dismissed Yousef s claims for declaratory and injunctive relief for failure to exhaust the

11 Case: Document: 53 Page: 11 02/28/ statutorily mandated administrative remedies. Id. at Yousef appealed, and the United States Court of Appeals for the Tenth Circuit affirmed. Id. * On June 16, 2011, Yousef filed in the United States District Court for the Southern District of New York a habeas corpus petition challenging the continued imposition of SAMs at the Colorado prison where he is serving his sentence. In a Memorandum and Order dated July 22, 2011, the District Court ruled that it lacked jurisdiction to entertain Yousef s challenge to the conditions of his confinement, and it transferred Yousef s petition to the District of Colorado. In a Memorandum and Order dated September 20, 2011, the District Court denied Yousef s motion for reconsideration. Yousef is currently serving his sentence. Statement of Facts A. The Offense Conduct Ramzi Yousef was convicted, following two approximately four-month jury trials, for his involvement in the Bojinga airliner bombing plot and the February 1993 bombing of the World Trade Center. The Government * The Colorado district court had retained jurisdiction over Yousef s claims for monetary relief. The Court of Appeals remanded the case to the district court with instructions to dismiss without prejudice Yousef s claims for monetary relief, also for failure to exhaust. See Yousef v. Reno, 254 F.3d at

12 Case: Document: 53 Page: 12 02/28/ presented overwhelming evidence at each trial proving that Ramzi Yousef was the mastermind of the 1993 World Trade Center bombing, which killed six people and wounded hundreds more, that he subsequently plotted with others to blow a dozen American airliners out of the sky, and that, during a test run for that plot, he killed one person by leaving a bomb with a timer beneath his seat on a plane, then disembarking at a stopover. The Government s evidence is recounted in detail in the Government s brief on appeal in United States v. Yousef, No (L), and the evidence is summarized in this Court s opinion affirming Yousef s convictions. See United States v. Yousef, 327 F.3d 56 (2d Cir. 2003); see also United States v. Salameh, 261 F.3d 271 (2d Cir. 2001); United States v. Rahman, 189 F.3d 88 (2d Cir. 1999), United States v. Salameh, 152 F.3d 88 (2d Cir. 1998). Because Yousef s present appeal may be resolved without analysis of the trial evidence, the Government only summarizes the evidence in this brief. In the spring of 1992, Yousef and a co-conspirator met at a terrorist training camp in Afghanistan and formulated a plot to attack the United States. United States v. Yousef, 327 F.3d at 78. Months later, in September 1992, the two traveled together to New York. The co-conspirator was stopped at the airport with a terrorist kit in his luggage that included, among other things, bomb-making manuals. Id. Yousef, however, was admitted into the United States. Id. Yousef constructed the bomb that he later helped transport into the World Trade Center. Id. at He assembled the co-conspirators, ordered the required bomb

13 Case: Document: 53 Page: 13 02/28/ chemicals, and then rented an apartment in New Jersey which served as the bomb factory where Yousef and other co-conspirators constructed the bomb. Id. On February 26, 1993, Yousef and another co-conspirator drove a bomb-laden van into the parking garage below the World Trade Center and set the timer to detonate soon thereafter. Id. at 79. At approximately 12:18 * p.m. that day, the bomb exploded, killing six people and injuring more than a thousand others. Id. Soon after the bombing, Yousef fled the United States. Id. In approximately August 1994, Yousef entered the Philippines using a fictitious name. Id. Within approximately one month, Yousef had devised a plan, which he and his co-conspirators called Bojinga, for five coconspirators to place bombs on twelve United States flag airliners operating in Southeast Asia. Id. The plot called for the co-conspirators to assemble the bombs on the planes and, using timing devices, to detonate the bombs after the co-conspirators disembarked during a layover. Id. Yousef and his co-conspirators performed several tests in preparation for the airline bombings. Id. In December 1994, Yousef and one co-conspirator detonated one bomb in a Manila movie theater, injuring several customers. Id. Days later, Yousef himself planted another test bomb under a passenger s seat during the first leg of a Philippine Airlines flight from Manila to Japan. Id. Yousef disem- * The six victims who were killed were Wilfredo Mercado, John DiGiovanni, Robert Kirkpatrick, William Macko, Stephen Knapp and Monica Smith.

14 Case: Document: 53 Page: 14 02/28/ barked from the plane and set the bomb to detonate during the second leg of the flight. The bomb detonated, killing * one passenger and injuring others. Id. The plot to bomb the airliners was uncovered only weeks before Yousef and his co-conspirators intended to carry it out, when Yousef and a co-conspirator were burning chemicals in their Manila apartment and accidentally caused a fire. Id. Police who responded to the fire discovered chemicals and bomb components, as well as a laptop computer on which Yousef had set forth the aircraft bombing plans. Id. Yousef fled but was captured in Pakistan in February Id. B. Post-Conviction Litigation in the District of Colorado After Yousef was convicted and sentenced in the United States District Court for the Southern District of New York, he was transferred to the United States Penitentiary in Florence, Colorado. Following his transfer to ** Colorado, Yousef (represented by counsel) filed an action in the United States District Court for the District of Colorado pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that the SAMs and other conditions of confinement violated various constitutional rights. See * The victim who was killed aboard the Philippine Airlines flight was Haruki Ikegami. ** Yousef s counsel on the instant appeal also represented Yousef at trial, on direct appeal, and in the Colorado Bivens action.

15 Case: Document: 53 Page: 15 02/28/ generally Yousef v. Reno, 254 F.3d at The district court in Colorado adopted the report and recommendation of the Colorado magistrate judge, and dismissed Yousef s claims for declaratory and injunctive relief pursuant to provisions of the Prison Litigation Reform Act ( PLRA ), 42 U.S.C. 1997e(a), which required a prisoner to exhaust administrative remedies before filing a federal suit. See 254 F.3d at The United States Court of Appeals for the Tenth Circuit affirmed the district court s dismissal of Yousef s claims for injunctive and declaratory relief. See id. at The Tenth Circuit concluded that effective administrative remedies were available to Yousef, that Yousef was required to exhaust the administrative remedies, and that neither asserted futility nor any other relevant exception to exhaustion was available. Id. at C. Yousef s Attempt to Challenge the SAMs in the Southern District of New York In March 2010, Yousef s counsel asked to be appointed to represent Yousef pursuant to the Criminal Justice Act ( CJA ), 18 U.S.C. 3006A. (See SA 2-5). * Counsel s grounds for this appointment were set forth in a letter filed under seal, and they did not include a challenge to the SAMs. (Id.). On April 8, 2010, the District * Br. refers to Yousef s brief on appeal; A. refers to the appendix filed with that brief; SA refers to the sealed appendix filed with that brief.

16 Case: Document: 53 Page: 16 02/28/ Court granted counsel s request to be appointed pursuant to the Criminal Justice Act. (A. 71). On or about June 16, 2011, Yousef filed in the District Court a petition for a writ of habeas corpus challenging the imposition of SAMs at the United States Penitentiary in Florence, Colorado. (A ). The cover sheet to Yousef s petition stated that it was filed under Title 28, United States Code, Section (A. 113). However, the memorandum in support of the petition stated that it was filed under Title 28, United States Code, Section (A ( Petitioner Yousef, who is here proceeding by way of a habeas corpus petition (28 U.S.C. 2241).... )). D. The District Court s Orders In a Memorandum and Order dated July 22, 2011, the District Court ruled that it lacked jurisdiction to entertain Yousef s challenge to the SAMs, and it transferred Yousef s petition to the District of Colorado. (A. 75). The District Court ruled that because Yousef s motion is challenging the conditions of [his] confinement, it is properly brought as a habeas claim pursuant to 28 U.S.C (Id.). The Court further ruled that because Yousef was challenging the conditions of his confinement, the proper venue for Petitioner s claims is the district where he is in custody. (Id.). Accordingly, the District Court transferred Yousef s petition to the District of Colorado. (Id.). On September 2, 2011, Yousef moved for reconsideration of the District Court s transfer order. (A ). On September 20, 2011, the District Court denied the motion

17 Case: Document: 53 Page: 17 02/28/ for reconsideration both because it was untimely and because Yousef failed to show that there were any issues of fact or law that the Court overlooked. (A. 77). The District Court noted that the case law cited by Petitioner in his motion does not alter this Court s conclusion that Petitioner s habeas petition challenges the conditions of his confinement, and thus, the only proper jurisdiction lies in the district of his confinement. (Id.). A R G U M E N T POINT I Yousef s Appeal Should Be Dismissed for Lack of Appellate Jurisdiction The District Court s order transferring Yousef s habeas petition to the District of Colorado is not a final order and is not appealable under the collateral order doctrine. Accordingly, this Court lacks appellate jurisdiction, and Yousef s appeal should be dismissed. Title 28, United States Code, Section 1291, provides the Courts of Appeals with jurisdiction to consider appeals from final decisions of the district courts. 28 U.S.C An order transferring a habeas petition is not a final decision within the meaning of Section See, e.g., Cruz v. Ridge, 383 F.3d 62, 64 (2d Cir. 2004); Murphy v. Reid, 332 F.3d 82, 83 (2d Cir. 2003). In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), the Supreme Court recognized an exception to the final judgment rule, which has come to be known as the collateral order doctrine. See Murphy v. Reid, 332 F.3d at To qualify for the exception, an order must

18 Case: Document: 53 Page: 18 02/28/ (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. Id. at 83 (internal quotation omitted). This Court has held, however, that orders transferring habeas petitions are not reviewable under the collateral order doctrine. See Cruz v. Ridge, 383 F.3d at 64-65; Murphy, 332 F.3d at 84-85; accord Middlebrooks v. Smith, 735 F.2d 431, 433 (11th Cir. 1984) (holding that an order transferring a habeas petition from one district to another is not an appealable collateral order). This is because the transfer decision is reviewable either in the transferee court or on appeal from a decision in the transferee court. See Murphy, 332 F.3d at 84-85; Middlebrooks v. Smith, 735 F.2d at In this appeal, Yousef challenges the District Court s order transferring his habeas petition to the District of Colorado. It is now well-settled in this Circuit that such an order is not a final order and is not appealable under the collateral order doctrine. Cruz, 383 F.3d at 64-65; Murphy, 332 F.3d at 84-85; see also Middlebrooks, 735 F.2d at 433. Accordingly, this Court lacks jurisdiction over Yousef s appeal. Moreover, because this Court does not have appellate jurisdiction over the case, this Court is without authority to consider counsel s challenge to the District Court s purported denial of funds under the Criminal Justice Act. See United States v. Yousef, 395 F.3d 76, 78 (2d Cir. 2005). In sum, because orders transferring habeas petitions are not final orders and are not reviewable under the collateral

19 Case: Document: 53 Page: 19 02/28/ order doctrine, Yousef s appeal should be dismissed for lack of appellate jurisdiction. POINT II The District Court Properly Transferred Yousef s Petition to the District of Colorado If this Court were to consider Yousef s appeal on the merits (and it should not), the District Court s orders should be affirmed. The District Court correctly determined that Yousef s habeas petition challenged the conditions of his confinement, and that it therefore should have been filed in the district of confinement. Accordingly, the District Court properly transferred the petition to the District of Colorado. A. Applicable Law It is well-established that where a federal inmate attacks the execution of his sentence rather than its validity, the challenge is properly brought as a habeas claim pursuant to 28 U.S.C See, e.g., Levine v. Apker, 455 F.3d 71, (2d Cir. 2006); Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir. 2003) ( Under 2241, a prisoner may challenge the execution of his sentence, such as... conditions of confinement. (citations, emendations, and emphasis omitted)); Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001) ( A motion pursuant to 2241 generally challenges the execution of a federal prisoner s sentence, including such matters as... type of detention and prison conditions. ). Section 2241 petitions challenging the conditions of confinement must be filed in the district where an inmate

20 Case: Document: 53 Page: 20 02/28/ is incarcerated. Section 2241(a) states that [w]rits of habeas corpus may be granted by... the district courts... within their respective jurisdictions. 28 U.S.C. 2241(a). This language requires that the court issuing the writ must have jurisdiction over the custodian. Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (quoting Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 495 (1973)). Under Section 2241, a federal inmate s custodian is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official. Rumsfeld v. Padilla, 542 U.S. at 435. Accordingly, with respect to habeas petitions designed to relieve an individual from oppressive confinement, the traditional rule has always been that the Great Writ is issuable only in the district of confinement. Id. at 442 (quoting Carbo v. United States, 364 U.S. 611, 618 (1961)); see also Billiteri v. United States Bd. of Parole, 541 F.2d 938, 948 (2d Cir. 1976) (holding that habeas petition challenging denial of parole must be filed in the district of confinement); United States v. Little, 392 F.3d 671, 680 (4th Cir. 2004) (holding that challenge to sentence calculation must be filed in the district of confinement); United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986) (same). A prisoner s challenge to imposition of SAMs is a challenge to the conditions of the prisoner s confinement. See Jabarah v. Garcia, No. 08 Civ (DC), 2010 WL , at *4 (S.D.N.Y. Sept. 30, 2010) (Chin, J., sitting by designation) ( The SAMs restrictions... govern [petitioner s] conditions of confinement. ); United States v. Hashmi, 621 F. Supp. 2d 76, 79 (S.D.N.Y. 2008) (noting that the inmate s conditions of confinement are government by restrictions put in place by the Attorney

21 Case: Document: 53 Page: 21 02/28/ General... pursuant to 28 C.F.R [the SAMs] ); see also Yousef v. Reno, 254 F.3d at 1216 (noting that Yousef was challenging the SAMs and other conditions of his confinement ). Accordingly, a prisoner s challenge to the imposition of SAMs must be filed in the district of confinement. See Jabarah v. Garcia, 2010 WL , at *4; see also Santulli v. United States, No. 02 Civ (SAS), 2003 WL , at *3 (S.D.N.Y. June 25, 2003) (concluding, pre-padilla, that [a] petition under section 2241 may properly be heard in... the district in which [inmate-petitioner] and his custodian may be found. ). B. Discussion In light of these legal principles, the District Court correctly ruled that the proper venue for Yousef s challenge to the SAMs was the District of Colorado. Accordingly, the District Court properly transferred Yousef s petition pursuant to Title 28, United States Code, Section See generally Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996) (discussing transfers pursuant to 28 U.S.C. 1631). Contrary to Yousef s arguments on appeal, his petition challenges the conditions under which he is serving his sentence at the federal penitentiary in Florence, Colorado. Indeed, Yousef s petition states, among other things, (1) that he challenged his conditions of confinement as implemented under the SAMs (A. 117), that the petition was being filed pursuant to 28 U.S.C (A. 144), and that he sought an order directing the Justice Department to void the existing SAMs (A. 125). It is readily apparent that Yousef s request to void the existing SAMs is an

22 Case: Document: 53 Page: 22 02/28/ effort to change the conditions of his confinement. Yousef himself appeared to recognize this, and he therefore stated that he filed the petition pursuant to 28 U.S.C. 2241, which is the statute applicable for challenges to conditions of confinement. See, e.g., Levine v. Apker, 455 F.3d at Indeed, even in his brief on appeal, Yousef argues that he wants his confinement to be subject to the ordinary BOP rules and regulations that govern inmate behavior and contact with the outside. (Br. 10). Thus, the District Court correctly concluded that Yousef s challenge related to the conditions of his confinement. None of the district court cases cited by Yousef suggest that challenges to SAMs may be filed anywhere but the district where an inmate is incarcerated. For example, in Abner v. Secretary of Dept. of Homeland Security, 2006 WL (D. Conn. June 19, 2006), the district court was considering the habeas petition of an individual who, at the time the petition was filed, was detained in Connecticut pending deportation. Id. at *1. After the petition was filed, the petitioner was transferred to Boston. Id. The district court ruled that, notwithstanding the fact that the petitioner had been transferred to immigration custody in Massachusetts, the District of Connecticut remain a proper venue for the habeas petition. Id. at *6. Whether or not this immigration case was correctly decided on its own facts, Abner says nothing about whether a petitioner serving a criminal sentence may challenge SAMs anywhere but the district in which he is confined. Likewise, Evans v. United States, 2010 WL (E.D.N.Y. May 17, 2010), involved a state inmate s pro se habeas petition relating to a future decision regarding the

23 Case: Document: 53 Page: 23 02/28/ computation of credit for a federal sentence that petitioner has not yet begun to serve, and on which the Bureau of Prisons has not made a determination. Id. at *1. The district court ruled that it could consider the petition, because the petitioner was not in federal custody but was challenging the calculation of a federal sentence imposed in the Eastern District of New York. Id. at *3. The district court then denied the petition because it was not ripe for review. Id. at *4. Evens does not speak to the question of where inmates who are in federal custody may challenge their conditions of confinement. Yousef s reliance on Ulloa v. Ledezma, 2009 WL (W.D. Okla. July 28, 2009), is also misplaced, because that case involved a claim of actual innocence, rather than a challenge to the prisoner s conditions of confinement. Id. at *4 ( This case is not a challenge to the execution of the sentence the typical 2241 challenge but a challenge to the conviction and sentence itself, where 2241 is invoked pursuant to the savings clause of 28 U.S.C on grounds that the remedy provided by 2255 is inadequate or ineffective. ). Similarly, Gustafson v. Williams, 2010 WL (D. Nev. 2010) involved the habeas petition of a prisoner serving a Minnesota state sentence in a Nevada facility. Id. at *1. Because the petitioner was challenging the validity of his Minnesota conviction, the district court transferred the case to the District of Minnesota. Id. at *3. Likewise, Carballo v. LaManna, 2006 WL (D.S.C. Nov. 6, 2006), involved a habeas petition by a prisoner serving a Florida state sentence in a federal facility in South Carolina. Id. at *1. Under those circumstances, the district court transferred the prisoner s petition to the Northern District of

24 Case: Document: 53 Page: 24 02/28/ Florida. None of these cases address the appropriate venue for a federal prisoner s challenge to the conditions of confinement. Yousef s assertion that the Government waived any challenge to venue is meritless. The rules governing habeas petitions state that the respondent is not required to answer the petition unless a judge so orders. See Rule 5(a) of the Rules Governing Section 2254 Cases; Rule 5(a) of the Rules Governing Section 2255 Cases. Yousef s petition stated on its face that it was a Section 2255 motion (A. 113), and, in any event, the Rules Governing Section 2254 Cases are applicable to Section 2241 petitions. See Rule 1(b) of the Rules Governing Section 2254 Cases ( The district court may apply any or all of these rules to a habeas corpus petition not covered by Rule 1(a). ); Poe v. United States, 468 F.3d 473, 477 & n.6 (7th Cir. 2006). In this case, the District Court never ordered the Government to respond to Yousef s petition. Accordingly, the Government could not have waived any arguments. See Fed. R. Civ. P. 46 ( Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made. ); Rule 12 of the Rules Governing Section 2254 Cases (stating that Federal Rules of Civil Procedure may be applied). In any event, the District Court was entitled to transfer Yousef s petition to the district of confinement sua sponte. See Chatman-Bey v. Thornburgh, 864 F.2d 804, & n.10 (D.C. Cir. 1988) (en banc). Finally, contrary to Yousef s suggestion, his petition does not present an exceptional case warranting deviation from the basic rules of habeas jurisdiction. (Br. 12).

25 Case: Document: 53 Page: 25 02/28/ Because the District Court properly transferred Yousef s petition, it did not err in denying Yousef s motion for reconsideration. The District Court also properly denied the motion on the ground that it was untimely under Local Civil Rule 6.3. In sum, the District Court correctly determined that Yousef s petition should have been filed in the District of Colorado and properly transferred the petition to that district. POINT III This Court Lacks Jurisdiction to Consider Yousef s Claim Regarding the Purported Denial of Criminal Justice Act Funds As set forth in Point I above, because this Court lacks jurisdiction over this appeal, it cannot consider Yousef s claim that the District Court improperly refused to sign a voucher for funds under the Criminal Justice Act. See United States v. Yousef, 395 F.3d at 78. Moreover, the record is insufficient to allow review of this claim. As Yousef acknowledges, there is no written order denying CJA funds. (Br. 21). Instead, Yousef s claim is based solely on his counsel s account of conversations between counsel and a member of the CJA panel. (Br ). It should be noted, however, the denial of CJA funds appears understandable under these circumstances. In March 2010, Yousef s counsel asked to be appointed pursuant to the Criminal Justice Act. Counsel s grounds for this appointment were set forth in a letter filed under seal, and they did not include a challenge to the SAMs. (SA 2-5). On April 8, 2010, the District Court granted this

26 Case: Document: 53 Page: 26 02/28/ request. (A. 79). Later, in a letter dated September 8, 2010, counsel asked the District Court if the CJA appointment would cover Yousef s anticipated challenge to the SAMs. (SA 31). In the letter, counsel noted that the Government opposed such an appointment. (Id.). Counsel never received a response from the District Court. (Br. 18). Contrary to Yousef s argument on appeal, subsequent events did not suggest that the District Court had tacitly agreed to such an appointment. (Br. 18). Rather, the District Court s appointment of a paralegal, approval of a request for counsel to travel to see Yousef, and approval of an interim CJA voucher were all consistent with the purposes of the April 2010 appointment. Because counsel had not been appointed to represent Yousef in connection with a habeas petition, the denial of CJA funds appears understandable.

27 Case: Document: 53 Page: 27 02/28/ CONCLUSION The appeal should be dismissed. Dated: New York, New York February 28, 2012 NICHOLAS J. LEWIN, ANDREW L. FISH, Assistant United States Attorneys, Of Counsel. Respectfully submitted, PREET BHARARA, United States Attorney for the Southern District of New York, Attorney for the United States of America.

28 Case: Document: 53 Page: 28 02/28/ CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, the undersigned counsel hereby certifies that this brief complies with the type-volume limitation of Rule 32(a)(7)(B). As measured by the wordprocessing system used to prepare this brief, there are 4,379 words in this brief. PREET BHARARA, United States Attorney for the Southern District of New York By: ANDREW L. FISH, Assistant United States Attorney