Opinion
CIV-23-765-R
01-26-2024
ERICK GACHUHI WANJIKU, Petitioner, v. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE), Respondent.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUDGE
Petitioner Erick Wanjiku (Petitioner), a federal inmate proceeding pro se, challenges the validity of the U.S. Immigration and Customs Enforcement (ICE) May 9, 2023 detainer imposed upon him. Doc. 1.He asserts this Court's jurisdiction under 28 U.S.C. § 2241. Id. at 1.He claims he is in custody because of the May 9, 2023 detainer and in turn challenges its validity. He notes that this detainer was imposed after a previous March 2023 detainer had been lifted. Id. at 1-2; see Wanjiku v. Dep't of Homeland Sec., No. 23-464, Doc. 11, Att. 1.
The Court construes Petitioner's filings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalizations, quotations are verbatim unless indicated.
The United States argues this Court lacks jurisdiction because Petitioner is not in custody because of the detainer or a final order of deportation, but on federal charges. Doc. 10, at 3-6. So, the United States argues, Petitioner has not named the proper respondent, has not plead a constitutional violation, and has failed to properly serve ICE. Id. at 6-12.
United States District Judge David L. Russell referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. The undersigned recommends the Court dismiss this action for lack of jurisdiction.
I. Procedural background.
Petitioner, a legal permanent resident, was serving a state sentence after his conviction for assault by strangulation. Doc. 1, at 1 (citing Oklahoma v. Wanjiku, Case No. CF-2019-4181, https://www.oscn.net/dockets/GetCaseInformation.aspx?db=tulsa&number=C F-2019-4181&cmid=3288095 (last visited Jan. 26, 2024)).ICE issued a detainer to prison officials on March 17, 2023. Id. Upon his release from state custody in May 2023, ICE officials detained Petitioner pursuant to the detainer. Id. During Petitioner's May 8, 2023 processing, he resisted providing a thumb or fingerprint, prompting his alleged assault of two federal officers. See United States v. Wanjiku, No. 23-227-R, Docs. 1, 17 (Wanjiku I). On May 9, 2023, United States Magistrate Judge Shon Erwin signed a complaint charging Petitioner with assault on a federal officer. Wanjiku I, Doc. 1. The grand jury returned an indictment charging him with two counts of assault on a federal officer, 18 U.S.C. § 111(a)(1). Id. at Doc. 17. This Court detained him pending trial under the Bail Reform Act, 18 U.S.C. § 3142(g), because the United States established by clear and convincing evidence Petitioner would pose a danger to the community if released. Id. at Doc. 16. A jury convicted Petitioner on both counts. Id. at Doc. 50.
The Court takes judicial notice of the docket in Petitioner's state court case. United States v. Ahidley, 486 F.3d 1184, 1192 (10th Cir. 2007) (recognizing authority to “exercise our discretion to take judicial notice of publicly-filed records in our court and certain other courts concerning matters that bear directly upon the disposition of the case at hand”).
Proceeding pro se, Petitioner challenged his detention, noting he was still challenging his state court conviction “that initiated immigration involvement.” Id. at Doc. 57. This Court rejected his challenge, concluding “[t]he detention decision was based upon the Defendant's history of violence, prior criminal history, criminal activity while on probation, lengthy period of incarceration if convicted, prior failure to appear in court, and his immigration status.” Id. at Doc. 63, at 1-2 (citing id. at Doc. 16). This Court also found “no reason to alter” the detention decision, citing even stronger evidence for detention after trial. Id. at Doc. 63, at 4.
The Tenth Circuit affirmed this Court, holding:
Mr. Wanjiku argues that his detention is based primarily on an immigration detainer and that he is still challenging the state conviction on which it is based. The detention order, however, is supported by more than just the fact of an immigration detainer. In ordering pretrial detention, the district court found, among other things, that the weight of the evidence against Mr. Wanjiku was strong and included video footage showing Mr. Wanjiku kicking one officer and biting another. It also found that Mr. Wanjiku has a prior criminal history (including participating in criminal activity while on probation) and a history of violence. In denying Mr. Wanjiku's motion for release pending sentencing, the district court further noted that, if anything, the case for post-trial detention has been strengthened given Mr. Wanjiku's conviction for physically assaulting the immigration officers.
In short, the district court made the necessary factual findings to support its denial of Mr. Wanjiku's motion for release pending sentencing.Id. at Doc. 87, at 4-5, Case. No. 23-6180 (10th Cir. Dec. 4, 2023).
Petitioner was later sentenced to thirty-six months' imprisonment for each count of assault on a federal officer, to be served concurrently, and was committed to the custody of the Federal Bureau of Prisons. Id. at Doc. 97.
Petitioner challenges the May 9, 2023 detainer and seeks its removal pending the resolution of Wanjiku I and his state court case, State v. Wanjiku, No. CF-2019-4181. Doc. 1, at 2.
II. Analysis.
To obtain habeas corpus relief, a petitioner must normally establish that “[h]e is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also Ikunin v. United States, 2013 WL 2476712, at *1 (D. Kan. June 7, 2013) (“A state prisoner's challenge to a detainer lodged by a sovereign other than the one currently holding him in custody, whether it be another State or federal authorities, is normally raised in a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.”).
An inmate challenging an ICE detainer, however, must actually be in custody pursuant to the ICE detainer. Ikunin, 2013 WL 2476712, at *1. As the United States argues,“[t]he mere lodging of a detainer by an ICE agent does not constitute custody where no formal deportation proceedings have been commenced and no final deportation order has issued, since the detainer may be only a request that [federal] authorities notify ICE prior to [an] inmate's release.” Id. (citing Nasious v. Two Unknown B.I.C.E. Agents, 657 F.Supp.2d 1218, 1229-30 (D. Colo. 2009), aff'd, 366 Fed.Appx. 894 (10th Cir. 2010) (“Almost all of the circuit courts considering the issue have determined that the lodging of an immigration detainer, without more, is insufficient to render someone in custody.”) (collecting cases), then citing Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001) (custody requirement satisfied by final deportation order)).
Petitioner has not shown that he is in custody pursuant to the challenged ICE detainer. Petitioner does not allege that he has been ordered removed or that he has appealed any removal order to the Board of Immigration Appeals. Instead, the Petition and this Court's records show that he is in custody serving the sentence imposed by this Court in Wanjiku I.
Because Petitioner has not shown that he is in ICE custody, his Petition is subject to dismissal. See Herrera v. Milyard, 2009 WL 1806700, at *1 (D. Colo. June 24, 2009) (“[Petitioner] does not assert, or provide any evidence, that immigration officials have taken any action with respect to his immigration status other than to issue a detainer, nor does he provide any evidence that a final order of deportation has been issued. A detainer only indicates that the [sic] ICE is going to make a decision about the deportability of an alien in the future. The fact that ICE has issued a detainer is not sufficient by itself to satisfy the custody requirement.”) (citing Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994))).
Petitioner has also not indicated that he has exhausted available administrative remedies before filing suit in federal court. See also Jaghoori v. United States, No. 11-3061-SAC, 2011 WL 1336677, at *3 (D. Kan. April 7, 2011) (finding that to proceed under § 2241, a petitioner must show exhaustion of available administrative remedies, and finding petitioner alleged “no facts indicating that he has made any effort to remove the detainer through ICE or the prison grievance process”). If Petitioner is claiming that the ICE detainer is invalid, he fails to allege that he has taken appropriate steps to contest the detainer on this or any other grounds or that he has provided ICE with proof he is not subject to an immigration detainer. See Ikunin, 2013 WL 2476712, at *2 (Petitioner alleged “no facts indicating that he [] made any effort to challenge the detainer through the prison grievance process.”).
III. Recommendation and notice of right to object.
The undersigned recommends the Court dismiss Petitioner's § 2241 Petition challenging his ICE detainer because Petitioner has not shown that he is “in custody” pursuant to the detainer for purposes of § 2241. Adoption of the undersigned's recommendation would render moot Petitioner's pending motion for writ of mandamus, Doc. 11.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before February 16, 2024, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2).
The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in the captioned matter.