Opinion
Nos. 04 Civ. 6921 (DLC), 03 Cr. 282 (DLC).
March 2, 2005
MEMORANDUM OPINION AND ORDER
Andres Puentes-Germes ("Puentes") has filed a timely petition for a writ of habeas corpus pursuant to Title 28, United States Code, Section 2255, following his conviction for illegal reentry. Puentes complains that he received ineffective assistance of counsel because his attorney did not move to dismiss the indictment for a violation of the Speedy Trial Act ("Act"). The petition must be denied.
An essential component of an ineffective assistance claim is that there be prejudice. Since there was no violation of the Act, there was no prejudice and no violation of the Sixth Amendment right to receive assistance of counsel. Puentes first complains that he was held for six months in detention before appearing in court on the Indictment that was filed against him.
Following his deportation, Puentes illegally reentered the country and was arrested by the New York City police for a drug sale. He was incarcerated at Rikers Island, until he was transferred on January 30, 2003 to the custody of the Immigration and Customs Enforcement ("ICE"), which was investigating his immigration status. On February 20, 2003, a complaint was issued for his arrest for illegal reentry. Puentes was arrested on this illegal reentry charge on February 25, and indicted on March 6. He pleaded guilty on May 23, and was sentenced on October 10, 2003.
The Act begins to run from the time of a federal arrest.United States v. Simmons, 923 F.2d 934, 955 (2d Cir. 1991). Puentes has shown no violation of the Act following February 25, and he has alleged none. The time spent at Rikers Island or in ICE custody prior to his federal arrest did not trigger the running of time under the Act.
Puentes also claims that there was a violation of his rights under Rule 5(a), Fed.R.Crim.P. Rule 5(a) begins to run from the time of Puentes' federal arrest. Detention by ICE does not trigger Rule 5(a). See United States v. Encarnacion, 239 F.3d 395, 399 (1st Cir. 2001). Puentes does not assert that there was any violation of his rights under Rule 5(a) following his federal arrest.
CONCLUSION
For the reasons stated above, Puentes' Section 2255 petition is dismissed. The Clerk of Court shall close the case. I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
SO ORDERED.