Opinion
CIVIL ACTION NO. 04-908
May 27, 2004
REPORT AND RECOMMENDATION
Presently before this court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2241. Jorge Iniesta-Padilla ("Petitioner"), a federal prisoner, was previously incarcerated at the Berks County Prison at Leesport, Pennsylvania. He is currently at the Federal Detention Center awaiting sentencing. Petitioner is seeking release from federal custody and immediate removal to Mexico based on alleged due process and speedy trial violations. See Petition for Writ of Habeas Corpus ("Pet.") at 3. The Honorable Legrome D. Davis referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, this petition should be denied.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts in this background and procedural history were obtained from the Petition for Writ of Habeas Corpus and the Government's Response and Supplemental Response to the Petition, inclusive of all exhibits thereto.
Petitioner, a 31 year old native of Mexico, see Pet. at 3, entered the United States illegally in June 1992. See Respondent's Brief ("Resp.") at Exh. "A" (Record of Deportable/Inadmissible Alien). On July 11, 2000, Petitioner was arrested in Reading, Pennsylvania, and charged with rape, sexual assault, indecent assault, and indecent exposure. See id. Petitioner, on January 17, 2001, was convicted of the indecent assault charge and sentenced to a prison term. See id.
As a consequence of this criminal conviction, and because Petitioner was ineligible for discretionary relief from removal afforded under the Immigration and Nationality Act, the Bureau of Immigration and Customs Enforcement ("ICE") deemed Petitioner removable. See id. at Exh. "B" (Final Administrative Removal Order). Upon completion of his sentence, on January 15, 2002, Petitioner was removed to Mexico. See Pet. at 3. However, on or about October 20, 2003 Petitioner illegally reentered the United States, reportedly for the purpose of moving his family to Mexico. See id. After a traffic stop on December 13, 2003, Petitioner was arrested and detained by ICE in Reading, Pennsylvania. See id. ICE, on December 19, 2004, issued a Notice of Intent/Decision to Reinstate Prior Order [of Deportation], which Petitioner signed and elected not to contest. See Pet. Exh. "A." Petitioner was notified therein that he was removable as an alien who had illegally reentered the United States after having been previously removed. See Resp. at Exh. "C." On February 26, 2004, Petitioner was indicted for his illegal reentry into this country in violation of 8 U.S.C. § 1326(a) and (b)(2). See USA v. Iniesta-Padilla, Crim. No. 04-96, Doc. 1 (E.D.Pa. 2004). A bench warrant for Petitioner was issued simultaneously. See id. at Doc. 2.
On March 2, 2004, Petitioner filed the instant writ of Habeas Corpus seeking immediate removal to Mexico. See Pet. at 1. On or about March 5, 2004, he was transferred into the custody of the United States Marshal and ordered temporarily detained, based on the criminal charges. See Iniesta-Padilla, Crim. No. 04-96, at Docs 4, 5. Counsel was appointed on March 9, 2004. See id. at Doc. 7. On March 17, 2004, a final detention order was entered, pending disposition of the criminal charges. See id. at Doc. 12. On April 30, 2004, Petitioner entered a guilty plea to reentry charges before the Honorable James Knoll Gardner. See id. at Doc. 21. He will be sentenced on August 4, 2004. See id. at Doc. 22.
II. DISCUSSION
Petitioner is an alien subject to a final order of removal. Also, he is admittedly guilty of federal illegal reentry charges and is being detained while awaiting sentencing. Petitioner, citing due process and speedy trial violations, by ICE, seeks prompt removal from the United States. See Pet. at 3. Jurisdiction to hear this matter emanates from 28 U.S.C. § 2241. Relief would be available under this provision if Petitioner were "in custody in violation of the Constitution or laws or treaties of the United States . . ." 28 U.S.C. § 2241. The scope of review in this instance is limited to determining if ICE has abrogated its nondiscretionary responsibility to immediately remove Petitioner or denied him a constitutional right. See Bakhtriger v. Elwood, 2004 WL 433947 *9 (3d Cir. 2004) (holding that the scope of review in a habeas case is restricted to determining "questions of constitutional and statutory law"). This court finds that no constitutional deficiencies warrant granting habeas corpus relief.
First, Petitioner is no longer in ICE custody. Although, initially, ICE arrested and detained Petitioner, on or about March 5, 2004, Petitioner was transferred to the care, custody, and control of the United States Marshal, for the purpose of prosecuting federal criminal charges. See Resp. at Exh. "E." He is presently housed at the Federal Detention Center, pending sentencing on the reentry charge to which he pled guilty. Thus, ICE does not have the ability to produce Petitioner's body for deportation or release. This petition, thus misdirected to ICE must be denied.
Second, Petitioner is not entitled to immediate deportation. ICE held Petitioner from December 13, 2003 to March 4, 2004, a total of three months. Such a delay in effectuating deportation subject to a final order is legal. Section 241 of the INA requires the detention of criminal aliens until removal is effectuated. See 8 U.S.C. § 1231 (a)(2). To safeguard prisoners rights, however, after six (6) months of detention subject to a final order of deportation, procedural safeguards must be followed. See Zadvydas v. Davis, 533 U.S. 678 (2001) (noting that the post-removal period detention statute, read in light of the Constitution's demands, implicitly limits an alien's detention to a period reasonably necessary to bring about that alien's removal from the United States, and does not permit indefinite detention). Petitioner's period of time in ICE custody was not long enough to trigger these safeguards. Hence, this court finds no statutory or constitutional violation.
Petitioner further alleges that his right to a speedy trial has been violated by ICE's detention. However, this Sixth Amendment right is not applicable to removal, a civil proceeding. See U.S. v. Schiffer, 836 F. Supp. 1164 (E.D. Pa. 1993) (citing that protections afforded by the Sixth Amendment are not available in a civil case); see also U.S. v. Dyer, 325 F.3d 464 (3d Cir. 2003) (noting that civil detention by the INS did not trigger the Speedy Trial Act), cert. denied, 124 S.Ct. 457 (2003). Furthermore, the docket reflects that Petitioner's criminal case is progressing appropriately; sentencing is scheduled to occur in August 2004.
Next, Petitioner claims that ICE denied his due process rights inasmuch as he was "purposely lied to and misled" regarding the timing of his removal to Mexico. See Pet. at 3. Petitioner states that he has been prejudiced and his family inconvenienced and economically disadvantaged as a result of the delay in advising him that he would be prosecuted for illegally reentering the country. See id. This court finds no federal statutory or constitutional violation.
For Petitioner to raise a viable due process cause of action, he must prove that ICE, without notice and procedural protections, deprived him of some constitutionally protected interest. See Cospito v. Heckler, 742 F.2d 72, 80 (3d Cir. 1984). Petitioner's claim fails, however, because he had no statutory or constitutional interest in knowing precisely how long he would be detained pending removal or to be advised immediately whether or not criminal charges ultimately would be lodged for his illegal behavior. See Pet. at 3. Petitioner's claim that he was intentionally misled by the ICE is factually unsupported. Rather, on February 25, 2004, the Immigration Office within the Berks County prison advised Petitioner's wife that they intended to prosecute Petitioner. Thus, ten (10) months before the December 16, 2004 order of removal was executed and one day before the indictment was handed down, Petitioner and/or his family had reason to believe he would not be removed immediately.
Moreover, Petitioner has not demonstrated that any harm resulted from his mistaken belief that he would be removed to Mexico in avoidance of criminal prosecution. See U.S. v. Lovasco, 431 U.S. 783, 790 (1977) (holding that proof of prejudice is generally a necessary, though not a sufficient, element of a due process claim). While unfortunate, the dire circumstances that have befallen Petitioner's family resulted from his improvident decision to break the law by reentering this country without prior approval of the government and not from any governmental dereliction. Thus, Petitioner's due process claim is unpersuasive and also fails.
Finally, by pleading guilty to a criminal count of illegal reentry, Petitioner has effectively extinguished any statutory or constitutional right to prompt deportation. See Parke v. Raley, 113 S.Ct. 517 at 520 (U.S. Ky., 1992); see also Libretti v. U.S., 116 S.Ct. 356 at 357 (U.S. Wyo., 1995) ("defendant acknowledged that by pleading guilty, he waived various constitutional rights, including the right to a jury trial and speedy trial). Illegal Reentry After Deportation is a crime punishable by a term of imprisonment as high as twenty (20) years. See 8 U.S.C. § 1326 (b). Until Petitioner's sentence is pronounced in August 2004, and any required sentence served, his continued incarceration is legal and warranted in the interest of justice. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 27th day of May, 2004, for reasons contained in the preceding report, it is hereby RECOMMENDED that this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 be DENIED without a hearing.