Opinion
C. A. 1:21-1065-HMH-SVH
05-11-2021
Ventura Salazar Salazar, Petitioner, v. Director M. Rhodes, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Ventura Salazar Salazar (“Petitioner”), proceeding pro se, is an inmate incarcerated at J. Reuben Long Detention Center (“JRDLC”) in Conway, South Carolina. He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civ. 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 judge. For the reasons that follow, the undersigned recommends the district judge dismiss the petition in this case without requiring the respondent to file an answer.
I. Factual and Procedural Background
Petitioner alleges Immigration and Customs Enforcement (“ICE”) is depriving him of due process “by attempting to deport [him] back to Mexico.” [ECF No. 1 at 6]. More specifically, he states “On August the 5th of 2020, ICE lodge a detainer when I have not been convicted of any criminal charges that warrant deportation.” Id. He alleges he became a legal United States citizen in 2013. Id. He states that exhaustion of administrative remedies is either unavailable or futile. Id.
On April 15, 2021, the undersigned issued an order directing Petitioner to bring this case into proper form for service. [ECF No. 4]. The order also directed Petitioner to show cause why this case should not be dismissed because he is not in ICE custody. Although Petitioner complied with the remainder of the order, he failed to file any response to the court's show-cause order.
II. Discussion
A. Standard of Review
Under established local procedure in this judicial district, a careful review has been made of this petition pursuant to the Rules Governing Section 2254 Proceedings for the United States District Court, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, and other habeas corpus statutes. Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y., 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
B. Analysis
Petitioner alleges ICE lodged a detainer against him on August 5, 2020. [ECF No. 1 at 6]. Federal courts have jurisdiction to entertain an application for habeas relief only if a petitioner is “in custody, ” pursuant to the challenged judgment, in violation of the Constitution or laws or treaties of the United States. Maleng v. Cook, 490 U.S. 488, 490-91, (1989); 28 U.S.C. § 2241(c). An alien who is confined pursuant to criminal charges is not in ICE custody simply because ICE has lodged a detainer against him with the prison where he is incarcerated. See Garcia-Echaverria v. United States, 376 F.3d 507, 510-11 (6th Cir. 2004); Drabovskiy v. U.S. Dep't of Homeland Sec., 573 Fed.Appx. 93, 94 (3rd Cir. 2014); Zolicoffer v. United States Dep't of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003); Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994). The underlying rationale of most courts that have considered this issue is that a detainer—as distinguished from other ICE orders—does not put a “hold” on the alien. Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994). Rather, an ICE detainer usually serves only as a notice to federal prison authorities that ICE is going to be making a decision about the deportability of the alien in the future. The reasoning follows that the detainer does not serve to establish conclusively either present or future restraints on his liberty. Id. Because there is no actual claim to the alien following the completion of his criminal sentence, there is no custody. Id. Therefore, because Petitioner has not alleged he is in federal custody, this court does not have jurisdiction to consider his petition pursuant to 28 U.S.C. § 2241(c).
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends this matter be dismissed.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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
901 Richland Street
Columbia, South Carolina 29201
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).