Opinion
No. 3:03-CV-1044-M.
June 4, 2003.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Factual and Procedural History
Petitioner is an immigration detainee of the Bureau of Citizenship and Immigration Services (BCIS) in the Rolling Plain Detention Center. He has filed this Motion and Request Under IAD or Interstate Agreement and/Under the 180 Day Rules/Requirement on Detainers and Pursuant to 28 U.S.C. § 2241 ("Motion"), wherein he seeks expedited proceedings under the Interstate Agreement on Detainers Act (IAD), 18 U.S.C. App. 2, §§ 1-9 (2002). He names the United States of America as respondent.
Petitioner was convicted in the United States District Court for the Eastern District of Texas. See United States v. Omari, No. 3:02-CR-0297-M (N.D. Tex.) (Transfer of Jurisdiction, doc. 1). On September 26, 2002, this Court accepted jurisdiction over petitioner's period of probation or supervised release which was scheduled to end November 1, 2004. Id. Upon a "Petition for Offender Under Supervision" and upon petitioner's waiver of a hearing to modify conditions of supervised release, the Court ordered that petitioner "reside in the comprehensive sanction center and successfully participate in [its] program . . . for a period of 180 consecutive days" on December 20, 2002. Id. (Pet. for Offender Under Supervision and attached waiver, doc. 13). Before petitioner was remanded to the sanction center, however, he was taken into custody by INS, now BCIS. (Motion at 3.) In April 2003, petitioner filed a petition under 28 U.S.C. § 2241 in Omari v. Estrada, No. 3:03-CV-0861-N (N.D. Tex) challenging his detention by the BCIS without a bond hearing. See Pet. at 7 filed in Cause No. 3:03-CV-0861-N.
In May 2003, petitioner filed the instant petition. He seeks an order that directs the relevant authorities to promptly remove him for trial and other pertinent proceedings. (Motion at 2.) He contends that the Order of December 20, 2002 has been rendered moot by his detention by the BCIS. ( Id. at 4.) He thus suggests that the 180-day "sentence" imposed on December 20, 2002 "be vacated and set aside." ( Id.)
II. APPLICATION OF INTERSTATE AGREEMENT ON DETAINERS ACT
Petitioner attempts to invoke the procedures of the IAD. The IAD "is a congressionally sanctioned interstate compact within the Compact Clause, U.S. Const., Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction." Carchman v. Nash, 473 U.S. 716, 719 (1985). The IAD is based upon a legislative finding that "charges outstanding against a prisoner, detainers based on untried indictments, informations, or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions produce uncertainties which obstruct programs of prisoner treatment and rehabilitation." 18 U.S.C. App. 2, § 2, Art. I. Its purpose is "to encourage the expeditious and orderly disposition of [outstanding] charges and determination of the proper status of any and all detainers based on untried indictments, informations, or complaints." Id.
To achieve this purpose, Article III of the IAD "establishes a procedure by which a prisoner incarcerated in one party State (the sending State) may demand the speedy disposition of `any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner' by another party (the receiving State)." Carchman, 473 U.S. at 720. This procedure is set forth in Article III(a), which provides in pertinent part:
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for final disposition to be made of the indictment, information, or complaint: Provided, That, for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
For purposes of the IAD, petitioner is incarcerated in a "party State." See 18 U.S.C. App. 2, § 2, Art. II(a) (defining "State" to include the United States). Nevertheless, he cannot invoke the procedures of Article III by its very terms. To invoke the provisions of the IAD, there must be "pending in [some] other party State an untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner." 18 U.S.C. App. 2, § 2, Art. III. Petitioner has identified no such untried indictment, information, or complaint. He mentions only the immigration detainer that has caused his current incarceration. However, that detainer is insufficient to trigger applicability of the IAD. A civil immigration detainer is "not an indictment, information or complaint." United States v. Gonzalez-Mendoza, 985 F.2d 1014, 1016 (9th Cir. 1993); see also, Vargas v. Swan, 854 F.2d 1028, 1032 n. 2 (7th Cir. 1988). The Court thus finds the IAD inapplicable to petitioner's circumstances.
Other than his reliance upon the IAD, petitioner makes only conclusory assertions for habeas relief. Conclusory allegations and assertions, however, are insufficient to obtain such relief. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Consequently, petitioner is entitled to no habeas relief on the instant petition filed under 28 U.S.C. § 2241
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the District Court DENY petitioner's application for habeas corpus relief, brought pursuant to 28 U.S.C. § 2241.INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on plaintiff by mailing a copy to him. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory, or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).