(HC) Mejia v. Gonzales, No. 1:2010cv00910 - Document 7 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS Regarding 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Dennis L. Beck on 6/25/2010. It is HEREBY RECOMMENDED That The instant petition for writ of habeas corpus be DISMISSED; and The Clerk of Court be directed to terminate this action. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 7/28/2010. (Bradley, A)

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(HC) Mejia v. Gonzales Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARIO A. MEJIA, 10 1:10-cv-00910-LJO-DLB (HC) Petitioner, 11 FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 12 [Doc. 1] M. GONZALES, 13 Respondent. 14 / 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 Petitioner filed the instant federal petition for writ of habeas corpus on May 17, 2010. 18 Petitioner challenges an Immigration and Customs Enforcement (ICE) detainer. 19 DISCUSSION 20 I. Procedural Grounds for Dismissal 21 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 22 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 23 plainly appears from the face of the petition . . . that the petition is not entitled to relief." Rule 4 24 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 25 1990). 26 /// 27 /// 28 1 Dockets.Justia.com 1 2 II. Merits of Petition The Ninth Circuit has held that a “bare detainer letter alone does not sufficiently place an 3 alien in [ICE] custody to make habeas corpus available.” Garcia v. Taylor, 40 F.3d 299, 303 4 (1004). Indeed, Petitioner is currently in the custody of the California Department of Corrections 5 and Rehabilitation (CDCR) serving a sentence of three years imposed on July 8, 2008. 6 In addition, Petitioner’s challenge is not cognizable in a habeas corpus action. Title 8 7 U.S.C. § 1252 allows only very limited judicial review of ICE orders and decisions. See 8 8 U.S.C. § 1252 (stating which orders are reviewable and listing requirements to seek judicial 9 review); Reno v. American-Arab Anti-Discrimination Comm., 119 S.Ct. 936, 943 (1999) 10 (interpreting 8 U.S.C. § 1252(g) to find no judicial review of ICE’s “decision or action to 11 commence proceedings, adjudicate cases, or execute removal orders”). However, there is no 12 support for the proposition that the Court has jurisdiction to review the Immigration and Customs 13 Enforcement Agency’s alleged future conduct. It is the ICE and not this Court, which must 14 determine whether the Petitioner in this case is deportable or removable. It is also the ICE who 15 determines whether the Petitioner is entitled to a stay from removal under § 212(c). The ICE 16 detainer or hold does not mean that Petitioner is in INS custody for the purposes of obtaining 17 habeas corpus relief. See Campos v. Immigration and Naturalization Service, 62 F.3d 311 (9th 18 Cir. 1995); Garcia, 40 F.3d at 303. The hold is only a notification that a removal decision will be 19 made at some later date. Garcia, at 303-04; Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 20 1988). Because Petitioner is subject to an ICE detainer or hold, there is no final order of removal 21 or deportation and he is not ICE custody. Thus, the Court cannot proceed with a habeas corpus 22 petition concerning the ICE’s actions. See 28 U.S.C. § 2241(c). 23 RECOMMENDATION 24 Based on the foregoing, it is HEREBY RECOMMENDED that: 25 1. The instant petition for writ of habeas corpus be DISMISSED; and 26 2. The Clerk of Court be directed to terminate this action. 27 This Findings and Recommendation is submitted to the assigned United States District 28 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 2 1 Local Rules of Practice for the United States District Court, Eastern District of California. 2 Within thirty (30) days after being served with a copy, any party may file written objections with 3 the court and serve a copy on all parties. Such a document should be captioned “Objections to 4 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served 5 and filed within fourteen (14) days after service of the objections. The Court will then review the 6 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that 7 failure to file objections within the specified time may waive the right to appeal the District 8 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 IT IS SO ORDERED. 11 Dated: 3b142a June 25, 2010 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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