Opinion
C. A. 6:24-cv-00902-DCC-KFM
03-06-2024
Roberto Padillas, Petitioner, v. Scotty Bodiford, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
The petitioner, a pretrial detainee proceeding pro se and in forma pauperis, brought this action pursuant to 28 U.S.C. § 2241 seeking habeas relief. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to review such petitions for relief and submit findings and recommendations to the District Court. The petitioner's petition was entered on the docket on February 22, 2024 (doc. 1). Nevertheless, upon review, the undersigned recommends that the instant matter be summarily dismissed.
ALLEGATIONS
This is an action filed by the petitioner, a pretrial detainee at the Greenville County Detention Center (the “Detention Center”) (doc. 1). Of note, the petitioner has pending charges in the Greenville County General Sessions Court for two counts of criminal sexual conduct. See Greenville County Public Index, https://publicindex.sccourts.org/ Greenville/PublicIndex/PISearch.aspx (enter the petitioner's name and 2020A2320500873, 2020A2320500874) (last visited March 6, 2024).
The petitioner seeks habeas relief regarding a hold from United States Immigration and Customs Enforcement (“ICE”), which he contends is preventing him from returning to a pretrial bond program called the home incarceration program (“HIP”) (doc. 1).
The petitioner contends that the ICE hold is warrantless and false (id. at 1-2). The petitioner also contends that he was prevented from being released back onto HIP (after his arrest for alleged bond violations) because of the improper ICE hold (id. at 3). For relief, the petitioner seeks to have the ICE hold removed (id. at 6).
STANDARD OF REVIEW
The undersigned has reviewed the petition pursuant to the Rules Governing Section 2254 Cases in the United States District Courts; the Anti-T errorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214; and other habeas corpus statutes. As a pro se litigant, the petitioner's pleadings are accorded liberal construction and held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam). The mandated liberal construction means that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. However, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
DISCUSSION
The petitioner, a pretrial detainee, filed this action seeking habeas relief. Federal courts may only entertain an application for habeas relief for prisoners “in custody” in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2241(c)(1), (3). Generally, “a noncitizen who is confined pursuant to criminal charges is not in ICE custody for purposes of § 2241 simply because ICE has lodged a detainer against him with the prison where he is incarcerated.” Montero v. Bureau of Immigr. and Customs Enft, C/A No. 9:22-cv-00885-SAL-MHC, 2023 WL 6283371, at *3 (D.S.C. June 20, 2023), Report and Recommendation adopted by 2023 WL 6259853 (D.S.C. Sept. 26, 2023) (internal citations omitted). In the Fourth Circuit, a petitioner raising a habeas claim concerning the issue of deportability must be in ICE custody, and an ICE detainer does not subject a prisoner to ICE custody. Id. (internal citations omitted). Here, the petitioner, a pretrial detainee currently incarcerated at the Detention Center with an ICE hold, is not in ICE custody (see doc. 1). As such, the petitioner is not “in custody” for habeas purposes, and this petition is subject to summary dismissal because this court lacks jurisdiction over his habeas action.
In 2002, Congress enacted the Homeland Security Act, abolishing the Immigration and Naturalization Service and transferred most of its immigration functions to the Department of Homeland Security, of which ICE is a part. See Montero v. Bureau of Immigr. and Customs Enf't, C/A No. 9:22-cv-00885-SAL-MHC, 2023 WL 6283371, at *3 n.2 (D.S.C. June 20, 2023), Report and Recommendation adopted by 2023 WL 6259853 (D.S.C. Sept. 26, 2023) (internal citations omitted)
RECOMMENDATION
The undersigned is of the opinion that the petitioner cannot cure the defects identified above by amending his petition. Therefore, the undersigned recommends that the district court dismiss this action without prejudice, without leave to amend, and without issuance and service of process. See Britt v. DeJoy, 45 F.4th 790, 2022 WL 3590436 (4th Cir. Aug. 17, 2022) (mem.) (published) (noting that “when a district court dismisses a complaint or all claims without providing leave to amend . . . the order dismissing the complaint is final and appealable”). The petitioner's attention is directed to the important notice on the next page.
The petitioner cannot cure the deficiencies noted herein, however, dismissal without prejudice is recommended because the Fourth Circuit Court of Appeals has held that dismissals for lack of subject-matter jurisdiction must be without prejudice. S. Walk at Broadlands Homeowner's Assn v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Room 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).