The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #:
Marvin Hoyte petitions the Court, pro se, for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his detention by United States Immigration and Customs Enforcement ("ICE"). Hoyte claims that respondent Eric Holder ("Government") has violated his due process rights by subjecting him to indefinite incarceration pending deportation. On October 22, 2010, Magistrate Judge James L. Cott issued a Report & Recommendation ("R&R") advising that Hoyte's petition be dismissed because the Court does not have subject matter jurisdiction. Having reviewed the R&R, as well as Hoyte's timely objections, the Court adopts Magistrate Judge Cott's recommendations in full and denies Hoyte's petition.
Hoyte is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident in 1979. (R&R at 2.) On or about December 12, 2008, Hoyte was served with a Notice to Appear, charging him with being removable under the Immigration and Nationality Act ("INA") as an alien who had committed an aggravated felony. (Id.) Hoyte was immediately taken into ICE custody at the Varick Detention Facility in Manhattan and transferred to York County Prison in Pennsylvania the following day. (Id. at 1, 3.)
On May 5, 2009, Immigration Judge Walter A. Durling issued a final order of removal. (Id.) By notice dated June 10, 2009, Hoyte was informed that he was required to cooperate with ICE to facilitate his removal to Guyana; and that if he was not removed within 90 days, his custody status would be reviewed "on or about August 19, 2009" for consideration of release pursuant to an order of supervision. (Id. at 3.)
On June 19, 2009, Hoyte was transferred to the custody of the Queens County District Attorney's Office, pursuant to a February 6, 2009 bench warrant issued by New York State, charging Hoyte with criminal sale of a controlled substance in the third degree under New York Penal Law ("N.Y.P.L.") § 220.39. (Id.) The same day, ICE issued an Immigration Detainer. (Id.) On August 11, 2009, Hoyte was transferred back to ICE custody. (Id.) Two days later, he was again transferred to the custody of the Queens County District Attorney's Office, pursuant to an arrest warrant dated August 11, 2009 alleging another violation of N.Y.P.L. § 220.39. (Id.) Hoyte remains in the custody of the New York City Department of Corrections ("NYCDOC") at the George Motchan Detention Center ("GMDC") on Rikers Island, pending criminal charges. (Id. at 2-3.)
On April 26, 2010, Hoyte filed the instant petition for writ of habeas corpus, alleging that his "detention is in violation of due process of law and unauthorized under   § 241 of the INA." (Id. at 4.) He claims that his continued detention since May 5, 2009 violates Zadvydas v. Davis, 533 U.S. 678 (2001). (R&R at 4.) Hoyte claims that he has cooperated with ICE to facilitate his removal, but that the Guyanese Consulate has advised him that it will not issue him a travel document. (Id.)
On June 11, 2010, the Government moved to dismiss Hoyte's petition on various grounds, including lack of subject matter jurisdiction because Hoyte is not presently in ICE custody or detained pursuant to the order of removal. (Id.) Hoyte contends that he has been in ICE custody since December, 2008 and the removal period commenced on May 5, 2009, when the Immigration Court issued the removal order. (Id. at 4-5.) By Order dated September 2, 2010, Magistrate Judge Cott granted Hoyte's request to amend his petition to "add information to the papers already held." (Id. at 5.) Hoyte filed an addendum ("Addendum") on September 30, 2010, challenging the legality of the removal order.*fn2 (Id.)
On October 22, 2010, Magistrate Judge Cott issued an R&R, recommending that Hoyte's petition be dismissed for lack of subject matter jurisdiction. He reasoned that Hoyte is not in ICE custody, and should have named the individual with the ability to produce him-the warden of GMDC as respondent, not Attorney General Holder, (R&R at 6). Magistrate Judge Cott also concluded that the due process claim is premature and that the Court lacks subject matter jurisdiction to review the removal order. (Id. at 7, 11.)
Hoyte filed an objection to the R&R on October 29, 2010. ("Obj."). He argues that the court has subject matter jurisdiction over his petition since he is under ICE's "restraining order" and, therefore, confined by ICE. (Obj. at 1.) Hoyte also maintains that his due process claim is not premature because he was in ICE detention from May 5, 2009 to August 6, 2009-92 days since the final removal order was issued. (Id.) Hoyte claims that the June 19, 2009 transfer to the custody of the Queens County District Attorney's Office never occurred; and that his records are "grossly in error," "manufactured," and "fabricated." (Id. at 1-2.) Rather, Hoyte claims, ...