Opinion
CIVIL ACTION NUMBER: 03-1307, SECTION: "I"(5)
July 29, 2003
REPORT AND RECOMMENDATION
Pursuant to an order of reference from the District Judge, presently before the Court is the 28 U.S.C. § 2241 application for writ of habeas corpus of petitioner, Roberto Baez, his motion for bond, and the government's consolidated response to both the application and the motion. (Rec. docs. 1, 2, 4, 10, 15). For the reasons that follow, it is recommended that Baez' application and motion be denied.
Petitioner Baez is an excludable alien who arrived in the United States in the 1980 Mariel boatlift from Cuba. He was conditionally paroled into the United States but was subsequently convicted of criminal offenses in Florida and Georgia, including cocaine trafficking in the latter jurisdiction which carried a consequent twenty-year sentence. (See Rec. doc. 15, exs. A, D). That conviction resulted in the initiation of removal proceedings by the Immigration and Naturalization Service ("INS") and an order removing petitioner from the United States was issued on November 18, 2002 which was not appealed and has now become final. (Rec. doc. 15, ex. F). Since that time, petitioner has appeared before the Cuban Review Panel which, as recently as February 28, 2003, opted to continue to detain Baez based on his ". . . propensity to engage in recidivist criminal behavior . . .", his refusal to accept responsibility for his actions, and his overall lack of credibility. (Rec. doc. 15, ex. H). Pursuant to 8 C.F.R. § 212.12, the INS (now the Department of Homeland Security, "DHS") will reconsider Baez' parole status one year from the latter date. (Id.).
Baez is now before the Court seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2241, arguing that his continued detention without being charged with a crime is unlawful. He also alleges that false information regarding the quantity of cocaine involved in his Georgia trafficking conviction was knowingly presented to the Cuban Review Panel and that his detention deprives him of needed medical care.
Baez' constitutional challenge to his continued detention is easily handled. As an excludable alien who was never lawfully admitted to this country and who has never been here legally, Baez' continued detention does not implicate the Fifth Amendment even though he may have been paroled or released within the country at some point in time. Zheng v. Immigration and Naturalization Service, 207 F. Supp.2d 550, 552-53 (E.D. La. 2002), aff'd, F.3d (5th Cir. 2003)(table) (citing Zadvydas v. Davis, 533 U.S. 678, 693-94, 121 S.Ct. 2491, 2500-01 (2001);Gisbert v. Attorney General, 988 F.2d 1437, 1443 (5th Cir.), amended, 997 F.2d 1122 (5th Cir. 1993)). See also Rios v. Immigration and Naturalization Service, 324 F.3d 296, 297 (5th Cir. 2003) (there are no time limits on the detention of excludable aliens such as Mariel Cubans). Baez' challenge to his continued detention is foreclosed by the authorities cited above.
Baez also argues that false information was presented to the Cuban Review Panel with respect to the amount of drugs involved in his cocaine trafficking conviction. A review of the documents generated in that criminal case reveals that Baez was charged with trafficking of more than twenty-eight grams of cocaine and was ultimately found guilty as charged. (Rec. doc. 15, ex. B). Although the "Custody Worksheet" utilized by the INS initially listed the amount of cocaine as being two kilograms, that was reduced to approximately one hundred one grams via the sworn statement of the deportation officer on February 11, 2003. (Petition, ex. A; rec. doc. 10, ex. B). Baez was given a Panel Review interview on January 30, 2003 and was afforded an opportunity to explain the particulars of his previous convictions. He apparently failed to take advantage of this opportunity. (Rec. doc. 15, ex. G). The Panel's summary of the interview does not list the amount of cocaine involved in the trafficking conviction and it appears that the mere fact of Baez' past convictions, as well as his prison record and lack of credibility, were the reasons for their recommendation to detain petitioner. (Id.). Likewise, in the Panel's Final Notice of Parole Denial, no importance was placed on the amount of drugs involved in Baez' trafficking conviction. (Rec. doc. 15, ex. H). In short, Baez, presents no credible proof that false evidence was intentionally presented to the Cuban Review Panel or that any such evidence was given significant importance in the decision to maintain him in custody.
Baez agreed to be interviewed without representation. The Panel's recommendation noted that "[s]ubject was not willing to explain all his arrests." (Rec. doc. 15, ex. G). In fact, the Panel noted that Baez "admitted to nothing."
Finally, Baez seeks his release based on an alleged lack of medical care at his present place of confinement. In light of those allegations, on June 23, 2003, the Court ordered that Baez be presented to the Medical Department for evaluation. (Rec. doc. 9). As reflected by the Medical Director's report of June 30, 2003, plaintiff has been evaluated by numerous physicians, including a surgeon, both within and outside of the jail who concluded that surgery was not indicated and that petitioner's primary motivation was to obtain narcotic pain medication. (Rec. doc. 15, ex. I). No denial of needed medical care is apparent here.
Baez does not name as respondents/defendants herein any of the jail's medical staff.
RECOMMENDATION
For the foregoing reasons, it is recommended that the application for federal habeas corpus relief of Roberto Baez be dismissed with prejudice.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation contained in a magistrate judge's report and recommendation within 10 days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object.Douglass v. United Services Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996) (en bane).