David John Miller v. Margaret Hambrick, Warden of the Metropolitan Detention Center and William McCoy U.S. Marshall

David J. Miller appeals the dismissal of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2241 . This unusual case requires a decision on two points of law up to now not addressed by this circuit: (1) whether a prisoner, transferred into one district in order to testify in a pending case, is in the custody of the warden of that district or remains, for ha-beas corpus purposes, within the custody of the warden in the district from which he has been transferred; and (2) whether, if jurisdiction is lacking, transfer rather than dismissal is the appropriate response.

PROCEEDINGS

In 1984 David J. Miller pleaded guilty to one count of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952 and 963, one count of transportation of monetary instruments in violation of 31 U.S.C. § 5316 , and two counts of filing false income tax returns in violation of 26 U.S.C. § 7206 (1); he also forfeited $1,750,000. He was sentenced to 16 years imprisonment, the maximum possible under the plea agreement.

In August 1987 he made his initial appearance before the United States Parole Commission. The Commission set Miller’s guidelines in the light of three factors it found…