The opinion of the court was delivered by: LARIMER
Petitioner, Mervin Thompson ("Thompson"), currently in custody at the Federal Correctional Institution at Raybrook, New York, filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. Thompson seeks an order from this Court, directing respondent, the United States Immigration and Naturalization Service ("INS"), to withdraw the immigration detainer currently filed against him.
Pending before me are INS's motion to dismiss for lack of jurisdiction
and Thompson's motion for summary judgment.
Thompson is a native and citizen of Jamaica. He entered the United States on March 3, 1978 as a lawful permanent resident alien.
On December 22, 1994, Thompson was convicted in United States District Court for the Western District of New York of armed bank robbery. He was sentenced to a term of forty-eight months imprisonment, in the custody of the United States Bureau of Prisons, and INS was so notified.
The INS also received information that Thompson had been convicted of grand larceny in the fourth degree on September 24, 1993 in Monroe County Court. If, in fact, Thompson was convicted of this offense, in addition to his federal armed robbery offense, he would be subject to deportation from the United States.
On February 14, 1995, INS filed a detainer with the Bureau of Prisons, indicating that it had commenced an investigation to determine whether Thompson was deportable.
Thompson filed the instant habeas corpus petition, seeking relief from the INS detainer currently lodged against him.
INS moves to dismiss the petition on the ground that this Court does not have jurisdiction. Thompson moves for summary judgment.
In order for this Court to have jurisdiction over Thompson's habeas claims, Thompson must be in the custody of INS. 28 U.S.C. § 2241(c); Dearmas v. Immigration and Naturalization Serv., 1993 U.S. Dist. LEXIS 8169, No. 92 Civ. 8615 (PKL), 1993 WL 213031, at *2 (S.D.N.Y. June 15, 1993); Severino v. Thornburgh, 778 F. Supp. 5, 6 (S.D.N.Y. 1991). Consequently, resolution of this motion turns on the narrow issue of whether the filing of an INS detainer causes a sentenced offender to be "in the custody of the INS."
In Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993), the Second Circuit acknowledged that "the clear majority view" is "that an INS detainer constitutes (1) a notice that future INS custody will be sought at the conclusion of a prisoner's pending confinement by another jurisdiction, and (2) a request for prior notice regarding the termination of that confinement, and thus does not result in present confinement by the INS." Id. at 88; see, e.g., Prieto v. Gluch, 913 F.2d 1159, 1162 (6th Cir. 1990) (The INS detainer does not establish custody by INS for purposes of habeas corpus jurisdiction.), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d 1061, 111 S. Ct. 976 (1991); Orozco v. Immigration and Naturalization Serv., 911 F.2d 539, 541 (11th Cir. 1990) ("The filing of the detainer, standing alone, did not cause [petitioner] to come within the custody of the INS. Accordingly, the petitioner failed to demonstrate that he was entitled to proceed under section 2241."); Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988) ("The filing of an INS detainer, standing alone, does not cause a sentenced offender to come within the custody of the INS for purposes of a petition for a writ of habeas corpus."), cert. denied, 490 U.S. 1082, 104 L. Ed. 2d 666, 109 S. Ct. 2105 (1989).
Due to a procedural defect in the petitioner's appeal in Roldan, the Second Circuit, however, did not rule on the ...