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The question presented, one of first impression for this Court, is whether a petitioner in immigration detention or under an order of removal as a consequence of a state conviction is "in custody" within the meaning of the statute providing for a writ of habeas corpus to challenge such a conviction. We join our sister circuits that have considered the issue in holding that immigration detention is not "custody" for the purposes of establishing jurisdiction to consider habeas petitions challenging a state court conviction pursuant to 28 U.S.C. § 2254.

Adeniyi Ogunwomoju, ("petitioner" or "Ogunwomoju") a citizen of Nigeria, filed the petition which forms the basis of the two captioned cases in March of 2006 while he was in immigration detention. The petition was correctly designated as a habeas petition pursuant to 28 U.S.C. § 2254 by the United States District Court for the Southern District of New York, where the petition was filed. Pursuant to 28 U.S.C. § 2241(d), a petition for a writ of habeas corpus challenging a conviction in state court may be filed "in the district court for the district within which the State Court was held which convicted and sentenced him." Because Ogunwomoju's petition challenges his conviction in the Criminal Court of the City of New York ("Criminal Court") of criminal possession of a controlled substance, it was properly filed in the District Court for the Southern District of New York ("District Court"). We construe this petition and Ogunwomoju's subsequent motion[2] as a habeas petition 71*71 rather than as a petition for review of an order of removal. A timely appeal from the June 15, 2006 judgment of the District Court (Michael B. Mukasey, Chief Judge)[3] dismissing that petition confers upon us jurisdiction to review that judgment. 28 U.S.C. § 1291.


512 F.3d 69 (2008)

Adeniyi OGUNWOMOJU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Adeniyi Ogunwomoju, Petitioner,


People of the State of New York, Respondent.

Docket Nos. 06-3734-pr, 06-4424-ag.

United States Court of Appeals, Second Circuit.

Submitted: September 19, 2007.

Decided: January 7, 2008.

New York Law School location: File #3612A, Box #152