Opinion
CV 318-087
12-21-2018
JOSE SOLIDAD CHAVEZ, Petitioner, v. WARDEN VANCE LAUGHLIN, Respondent.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner, a state inmate at Wheeler Correctional Facility ("WCF") in Alamo, Georgia, brings the above-captioned petition pursuant to 28 U.S.C. § 2241. As "it appears from the application that the applicant or person detained is not entitled" to the relief he seeks, the Court now makes its recommendation without directing any respondent to file a response to the instant petition. 28 U.S.C. § 2243. For the reasons set forth below, the Court REPORTS and RECOMMENDS Petitioner's motion to proceed in forma pauperis ("IFP") be DENIED as MOOT, (doc. no. 6), and the petition be DISMISSED for lack of jurisdiction.
I. BACKGROUND
Petitioner reports he is currently serving a sentence imposed by the Superior Court of Hall County, Georgia, on August 24, 2001. (Doc. no. 1.) Although Petitioner does not disclose his crimes of conviction or length of sentence, the Georgia Department of Corrections reports Petitioner is serving a sentence that started on October 30, 2001, for three counts of aggravated child molestation and one count of child molestation with a maximum possible release date of February 15, 2041. Petitioner challenges an Immigration and Customs Enforcement ("ICE") detainer lodged against him on August 9, 2016. (Id. at 4, 6.) Petitioner contends his Due Process rights under the Fourteenth Amendment have been violated because he is being held by the State without parole due to the ICE detainer placed on him in 2016. (Id. at 6.) Petitioner requests "immediate deportation proceedings." (Id. at 8.)
Georgia Department of Corrections, available at http://www.dcor.state.ga.us/ (follow "Find an Offender" hyperlink; then "Search by ID or Case Number"; then "GDC ID Number 1092761," last visited Dec. 19, 2018). --------
II. DISCUSSION
The Court does not have jurisdiction under § 2241 to hear Petitioner's challenge regarding his immigration detainer. Despite his ICE detainer, Petitioner remains in the custody of the Georgia Department of Corrections at WCF. (See id. at 1.) Because a writ of habeas corpus grants relief from unlawful custody, see 28 U.S.C. §2241(c), jurisdiction does not lie where the authority against whom relief is sought does not have custody of the petitioner. See Orozco v. United States INS, 911 F.2d 539, 541 (11th Cir. 1990) (per curiam) ("[A]bsent custody by the authority against whom relief is sought, jurisdiction will not lie to grant the writ [of habeas corpus]."), superseded by statute on other grounds as explained, Themeus v. United States Dep't of Justice, 643 F. App'x 830, 832 (11th Cir. 2016) (per curiam). Because Petitioner challenges the detainer lodged against him by ICE, the Court only has jurisdiction if Petitioner is in the custody of ICE. He is not.
The mere lodging of an ICE detainer does not by itself cause a petitioner to come within ICE's custody for purposes of § 2241. Orozco, 911 F.2d at 541; Louis v. Sec'y, Fla. Dep't of Corr., 524 F. App'x 583, 583-84 (11th Cir. 2013) (per curiam); Roberts v. INS, 372 F. App'x 921, 924 (11th Cir. 2010) (per curiam). Petitioner is currently serving his state sentence and thus is not being held pursuant to an immigration detainer and is not in ICE's custody. Because the relief requested in the instant petition cannot be granted by the state officials who have custody of Petitioner while he serves his state sentence, jurisdiction under § 2241 is lacking and the petition must be dismissed. Orozco, 911 F.2d at 541; Roberts, 372 F. App'x at 924; Louis, 524 F. App'x at 583-84 (11th Cir. 2013).
III. CONCLUSION
For the reasons stated above, the Court REPORTS and RECOMMENDS that Petitioner's motion to proceed in forma pauperis ("IFP") be DENIED as MOOT, (doc. no. 6), and that the petition be DISMISSED for lack of jurisdiction.
SO REPORTED and RECOMMENDED this 21st day of December, 2018, at Augusta, Georgia.
/s/_________
BRIAN K. EPPS
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA