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DEUTSCH v. UNITED STATES

November 7, 1996

MELVIN P. DEUTSCH, Plaintiff,
v.
UNITED STATES OF AMERICA, UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, a/k/a "INS" JOHN DOE, Assistant District Director for Investigations, INS, Buffalo, New York, ELIZABETH VACCARO, Clerk, INS, Buffalo, New York Office and FEDERAL BUREAU OF PRISONS, aka "BOP", Defendants.



The opinion of the court was delivered by: LARIMER

 Petitioner, Melvin P. Deutsch ("Deutsch"), currently in custody at the Federal Correctional Institution at Loretto, Pennsylvania, filed a pro se petition for a writ of habeas corpus and a writ of mandamus on November 1, 1995.

 Deutsch seeks an order from this Court, directing respondent, the United States Immigration and Naturalization Service ("INS"), *fn1" to dismiss the immigration charges and the immigration warrant and detainer lodged against him. Deutsch also seeks an order from this Court, directing the respondent, Federal Bureau of Prisons ("BOP"), to release him from custody before Saturday, October 7, 1995. *fn2"

 Pending before me is respondents' motion to dismiss for lack of jurisdiction. *fn3"

 FACTUAL BACKGROUND

 INS maintains that Deutsch was born in Montreal on December 28, 1936 and, therefore, is a native and citizen of Canada. According to INS, Deutsch was registered as an alien on June 5, 1945 and has never acquired lawful permanent resident alien status or citizenship in the United States.

 Deutsch claims to the contrary that he was born in Brooklyn, New York on August 24, 1934 and that he has a birth certificate evidencing this fact. Deutsch maintains that he has never registered as an alien and is a United States citizen by birth. *fn4"

 On July 8, 1988, Deutsch was convicted in United States District Court for the Eastern District of New York of conspiracy to commit wire fraud. He was sentenced to three years imprisonment in the custody of the BOP and five years probation.

 On June 5, 1992, Deutsch was convicted in United States District Court for the Eastern District of New York of unauthorized use of an access device. He was sentenced to sixty-three months imprisonment in the custody of the BOP. This sentence was later reduced to fifty-one months. Deutsch had a projected release date from BOP custody on October 7, 1995. *fn5"

 On February 10, 1995, Deutsch was convicted of violating the terms of probation that were imposed as part of his 1988 sentence. As a result, he was sentenced to a term of fifty-six months imprisonment in the custody of the BOP to run consecutive to his fifty-one month sentence. Deutsch currently is serving this fifty-six month sentence and has a parole eligibility date of May 8, 1997.

 In June 1993, INS filed an immigration detainer against Deutsch with the BOP. Deutsch contacted INS and BOP to request a hearing, but received no response. On November 28, 1994, INS issued an order to show cause and a warrant of arrest to commence deportation proceedings against Deutsch.

 Deutsch maintains that he responded to the order to show cause--a response which he considers to constitute a plea of not guilty--and sent all parties notice that such a plea triggered his rights under the Speedy Trial Act and the Interstate Agreement on Detainers. Because INS has not complied with these rights and provided Deutsch with the requisite timely trial or hearing, Deutsch maintains that all immigration charges and the warrant and detainer must be dismissed with prejudice.

 Deutsch also claims that he has completed his mandated period of incarceration and should be released from BOP custody. Further, Deutsch maintains that BOP has information in its possession which proves that Deutsch is not an alien. However, because the warrant and detainer are lodged against him, Deutsch alleges that he is being subjected to enhanced security measures. If immediate release is not granted, Deutsch seeks relief from ...


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