Opinion
CASE NO. C02-2036L
November 25, 2002
ORDER TO DISMISS
On October 8, 2002, petitioner filed a motion to dismiss his indictment as a violation of the Speedy Trial Act, pursuant to 18 U.S.C. § 3161. (Dkt. #3). The Court construed the motion as a habeas corpus petition pursuant to 28 U.S.C. § 2241, because petitioner alleged that he had been placed under an immigration detainer. (Dkt. #3 at 2). On the same day, the Court ordered respondents to file a return and status report within 30 days from the date of the Order. (Dkt. #4). On October 24, 2002, respondents filed their return, along with a motion to dismiss. (Dkt. #5). Respondents argue that petitioner's petition should be dismissed for two reasons: (I) petitioner is a state prisoner, not a federal prisoner, and no immigration detainer has been issued; and (2) there are no federal criminal charges presently pending against petitioner in this District. (Dkt. #5 at 2-3). Petitioner has not replied to respondents' motion. Accordingly, based upon a review of the record, it is hereby ORDERED:
(1) Respondents' motion to dismiss (Dkt. #5) is GRANTED and the habeas petition (Dkt. #3) is DISMISSED without prejudice. Petitioner identifies the United States or America as the respondent in this action, and has also made allegations against the INS. A petition for writ of habeas corpus must be directed at the person having custody over the prisoner. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1993); Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992; Rules Governing § 2254 Cases, Rule 2(a). Failure to name a petitioner's immediate custodian as a respondent deprives the District Court of jurisdiction. Brittingham, 982 F.2d at 379. The immediate custodian is the person who has day-to-day control of the prisoner, or the one who can produce "the body" of the prisoner, and typically is the warden of the facility in which the petitioner is incarcerated. Id. It appears that petitioner is currently serving a state sentence at the Stafford Creek Correctional Center in Aberdeen, WA. His tentative release date is March 14, 2006. (Dkt. #5 at 1). In addition, it appears that there are no pending federal charges against petitioner in this District, nor pending elsewhere. (Dkt. #5 at 2). Even if such charges were pending, the Court agrees with respondents that "the federal Speedy Trial Act is not triggered when a defendant is detained in civil deportation charges." (Dkt. #5 at 3).
It also does not appear that the INS has actually issued a detainer for petitioner. Respondents state that there is no active detainer lodged against petitioner by the INS (Dkt. #5 at 2). Respondents acknowledge that petitioner has been served with a Notice of Intended Decision to Reinstate a Prior Order of Removal/Deportation, but assert that the INS has not proceeded any further towards reinstating that prior order, nor is such action imminent in light of petitioner's projected release date. (Dkt. #5 at 2). Even if the INS had issued a detainer letter, this is not enough to place petitioner in "custody" for habeas relief purposes. See Campos v. INS, 62 R3d 311, 314 (9th Cir. 1995) (deciding that an INS detainer letter alone does not sufficiently place a defendant in INS custody to make habeas corpus available).
Finally, in order to sustain a cause of action under 28 U.S.C. § 2241, a petitioner challenging his confinement by a state must exhaust all available state remedies. See Carden v. State of Montana, 626 F.2d 82, 83 (9th Cir. 1980). This exhaustion prerequisite for preconviction habeas relief serves two purposes: "(1) to avoid isolating state courts from federal constitutional issues by assuring those courts an ample opportunity to consider constitutional claims, and (2) to prevent federal interference with state adjudication, especially state criminal trials." Carden, 626 F.2d at 83, citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973).
Moreover, federal courts will not enjoin pending state criminal prosecutions except under extraordinary circumstances where the danger of irreparable loss is both great and immediate in that there is a threat to the petitioner's federally protected rights that cannot be eliminated by his defense against a single prosecution. Younger v. Harris, 401 U.S. 37 (1971); Perez v. Ledesma, 401 U.S. 82, 85 (1971). The "exceptional circumstances" exception was further explained by the Supreme Court as follows:
Only in cases of proven harassment or prosecutions by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be show is federal injunctive relief against pending state prosecutions appropriate.Perez, 401 U.S. at 85.
(2) The Clerk of the Court is directed to send copies of this Order to petitioner, all counsel of record, and to Judge Weinberg.