Opinion
Case No. 98-CV-74836-DT.
June 30, 2000.
MEMORANDUM OPINION AND ORDER
I. FACTS
Petitioner, Hai Van Nguyen immigrated from Vietnam in 1982. Upon arrival in the United States, he obtained an alien work green card and obtained employment approximately one year later. Petitioner Nguyen indicates that he has been employed with McNichols Repair Industries located at 501 McNichols, Detroit, Michigan, since 1991. Petitioner Nguyen has lived with his common law wife, Corrine Walatkewicz, for the past sixteen years. The couple has two children, Michael Nguyen, age 14, and Jeff Nguyen, age 9. Petitioner Nguyen also has a biological brother who currently resides in the City of Detroit as a legal alien.
At some time prior to March 1998, Petitioner Nguyen was convicted of breaking and entering and was sentenced to a prison term which was to be served at Gus Harrison Correctional Facility. It is not clear from the record when Petitioner Nguyen actually committed this offense, or when he was sentenced to a term of imprisonment at the Michigan Department of Corrections. The Petition submitted by Petitioner does not reflect the term of Petitioner Nguyen's imprisonment.
Petitioner Nguyen was informed, on or about March or April 1998, that the United States Immigration and Naturalization Service (INS) had filed a detainer in an effort to initiate deportation proceedings. Petitioner Nguyen then filed a writ of habeas corpus with this Court requesting that he be released from the unconstitutional restraint of the INS detainer.
On December 2, 1998, Petitioner Nguyen filed a motion with this Court to appoint counsel, for a translator and to set a personal recognizance bond pending the outcome of the INS detainer. On August 31, 1999, this Court granted Petitioner Nguyen's motion to appoint counsel and for a translator, but denied his motion for a personal recognizance bond.
Petitioner Nguyen appeared with counsel and an interpreter on June 5, 2000. At that time, he requested that the Court appoint him a new attorney. Petitioner Nguyen had consulted with a "jailhouse" attorney and had filed a motion to amend the Petition to add other claims. Petitioner Nguyen's appointed counsel did not object to Petitioner's request that he withdraw and the Court granted Petitioner's request. The Court then indicated it would consider the Petition and Mr. Nguyen's request for new counsel.
The Court declines to appoint new counsel at this time. While the Court understands the difficulty a person who does not have a good command of the English language may have in an American court of law, the Court finds that given the circumstances of this case, and the Court's lack of subject matter jurisdiction as discussed below, appointment of counsel is not necessary at this time. If Petitioner seeks to pursue a writ of habeas corpus upon transfer to INS custody, he may make such a request at that time, in accordance with the applicable statutes discussed below.
II. JURISDICTION OF THIS COURT
Petitioner Nguyen alleges that the INS detainer lodged against him is unconstitutional and therefore seeks release. The district court has the power to grant a writ of habeas corpus in accordance with 28 U.S.C. § 2241 which provides in pertinent part:
(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. . . . (c) the Writ of habeas corpus shall not extend to a prisoner unless (1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof. . .
The INS filed a response to the Petition. Although it is not named as a Respondent in this action, the INS filed the response in opposition to the Petition because the issues raised in the Petition revolve around the INS detainer. The INS claims that this Court has no subject matter jurisdiction over the instant writ of habeas corpus pursuant to Prieto v. Gluch, 913 F.2d 1159, 1162-66 (6th Cir. 1990) because Petitioner is not in INS custody at this time.
Petitioner admits in his Petition and in his Motion for a Hearing, that he is currently in the custody of Respondent, a state official, pursuant to a state criminal conviction. 28 U.S.C. § 2241 (c)(3) is clear that the petitioner must first be "in the custody of the United States" in order for the federal courts to extend its jurisdiction over a § 2241 writ of habeas corpus. The Sixth Circuit in Prieto held that the federal district court had no jurisdiction over the petitioner's writ of habeas corpus claim against the INS because the INS did not have custody over the prisoner, who was serving a federal sentence at that time in a federal institution. A detainer does not provide the INS with custody over a prisoner in order for the federal court to have federal habeas jurisdiction. Prieto, 913 F.2d at 1164. There is no allegation at this time that the INS, other than lodging a detainer with the state prison officials, has initiated any deportation proceedings against Petitioner. The Sixth Circuit noted that "[t]he detainer does not require the prison to `hold' the petitioner." Id. "The detainer notice does not claim the right to take a petitioner into custody in the future nor does it ask the warden to hold a petitioner for that purpose." Id. The Sixth Circuit found that the detainer, alone, does not give the district courts jurisdiction over the prisoner. Id. The Sixth Circuit found that the district court could not reach the merits of any of the claims or any of the respondents' arguments at all because the district court had no subject matter jurisdiction over the writ of habeas corpus. Id.
The Sixth Circuit found that the federal district court had jurisdiction over one prisoner, Benjamin Prieto, because he was an "excludable" alien whereas the other prisoners were "deportable" aliens. An "excludable" alien means that there is an issue as to whether he/she can enter legally. A "deportable" alien means that person is already in the United States and could now be considered "deportable."
As to the Respondent Frank Elo, Warden of the State prison involved, if Petitioner was claiming that his underlying criminal conviction was unconstitutional, he would first have to go through the procedures set out in 28 U.S.C. § 2254 which relate to habeas corpus proceedings seeking relief from a state conviction. The instant Petition was expressly brought under 28 U.S.C. § 2241 and a review of the Petition indicates that Petitioner was seeking relief from the INS detainer.
The Affidavit submitted by William G. Chene, a prisoner paralegal, suggests that Petitioner seeks relief from his underlying criminal conviction. If Petitioner is seeking relief from the underlying conviction, Petitioner must file a 28 U.S.C. § 2254 habeas corpus action. There are, however, procedures which Petitioner must follow, including, presenting the constitutional issues to all state courts first (trial, appeal and supreme courts) before filing a § 2254 habeas corpus action with the federal district court. There has been no showing at this time that Petitioner has presented any constitutional claims before the state courts. This Court cannot address any § 2254 claims at this time.
The Court will not require a response from the State Respondent with respect to any INS detainer claim. The detainer claim does not involve any state custody issues. In light of Prieto, this Court has no subject matter jurisdiction to consider any habeas requests based on the INS detainer.
If at some time the INS does proceed with its deportation proceedings, the Anti-Terrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 control. Although the INS in its response brief indicates that these Acts withdrew from judicial review all requests for relief from mandatory removal resulting from an aggravated felony, Petitioner can seek review of any INS action, in accordance with those Acts, at the time the INS takes such an action. The merits of any INS action and any rights the Petitioner may or may not have under those two Acts will not be addressed by the Court at this time because, as noted previously, this Court currently has no subject matter jurisdiction over the matter.
III. CONCLUSION
At this time, the Writ of Habeas Corpus is DISMISSED without prejudice for lack of subject matter jurisdiction.
Accordingly,
IT IS ORDERED that Petitioner's Motion for a Hearing on Petition for Writ of Habeas Corpus ( Docket No. 6, filed March 1, 2000) is GRANTED, given that a hearing has been held on the matter.
IT IS FURTHER ORDERED that Petitioner's Motion to Amend Motion Hearing on Petition for Writ of Habeas Corpus ( Docket No. 11, filed April 28, 2000) is DENIED.
IT IS FURTHER ORDERED that the Petition is DENIED and DISMISSED without prejudice.