Prieto v. Gluch
| Decision Date | 11 September 1990 |
| Docket Number | 89-1615,89-1600,89-1608,89-1599,Nos. 89-1596,89-1611,89-1605,s. 89-1596 |
| Citation | 913 F.2d 1159 |
| Parties | Benjamin PRIETO, Francisco Obregon-Rodriguez, Carlos A. Gonzalez, Jorge Zavala-Serra, Gustavo Moreno, Alonso Vargas, Jose L. Gomez-Parra, Jose A. Vasquez, Hernando Rueda-Gomez, Jose Valenciano-Suarez, Ramon Obando Orobio, Petitioners-Appellants, v. John GLUCH, United States Bureau of Prisons, United States Immigration and Naturalization Service, Respondents-Appellees. to 89-1618, and 89-1620. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John L. Belanger (argued), Warren, Mich., for petitioners-appellants.
L. Michael Wicks, Asst. U.S. Atty., Office of the U.S. Atty., Detroit, Mich., Alison R. Drucker (argued) and Mark C. Walters, U.S. Dept. of Justice Civ. Div., Washington, D.C., for respondents-appellees.
Before KENNEDY and MILBURN, Circuit Judges, and WEBER, District Judge. *
Petitioners, federal prisoners, appeal a dismissal of their suit seeking a writ of habeas corpus and injunctive relief. Petitioners complain of detainer notices (detainers) lodged against them by the Immigration and Naturalization Service (INS). Respondents are John Gluch, then warden of the Federal Correctional Institution at Milan, Michigan (FCI Milan); the United States Bureau of Prisons (BOP); and the INS. Petitioners argue (1) that the District Court erred in finding that it lacked jurisdiction over their claims, and (2) that the District Court erred in finding that they had no private cause of action pursuant to 8 U.S.C. Sec. 1252(i).
On March 22, 1988, Juan Ganem, 1 who was serving a ten-year sentence for narcotics violations at FCI Milan, filed a Petition for Writ of Habeas Corpus and Injunctive Relief with the United States District Court for the Eastern District of Michigan. Ganem alleged that on November 18, 1985, an INS detainer was sent to the prison officials. After lodging an Order to Show Cause with the prison on March 3, 1986, the INS notified petitioner that his hearing would be held on August 6, 1986. The INS later canceled the hearing and informed Ganem that it would be held after he was released from confinement, and that the detainer would be left in place until that time. Ganem asked the District Court to "expunge or execute the detainer," arguing that its existence (1) violated his due process rights by negatively affecting his security level and therefore the conditions of his custody, and (2) contravened the duty imposed upon the Attorney General by section 1252(i), which requires that "[i]n the case of an alien who is convicted of an offense which makes the alien subject to deportation, the Attorney General shall begin any deportation proceeding as expeditiously as possible after the date of conviction." 8 U.S.C. Sec. 1252(i).
On May 23, 1988, respondents filed an initial motion for summary judgment, arguing that petitioners had unsuccessfully litigated the same claims in a prior action in mandamus against the INS alone, and that the present action was therefore barred by res judicata. In Juan Ganem-Issa v. INS, No. 86-70424 (E.D.Mich.1986), aff'd, 825 F.2d 410 (6th Cir.1987), the District Court determined that "[u]nder applicable statutes and regulations, respondent need not conduct a hearing to determine whether an alien who has sustained a criminal conviction should be deported, until after the alien is released from custody." Ganem responded that his suit was not barred by res judicata because Congress had passed section 1252(i) since his mandamus action had been dismissed.
The District Court denied petitioners' claims. The court stated that the issues of failure to state a cognizable claim under section 1252(a) and lack of jurisdiction under section 1252(a) were resolved in the earlier Ganem-Issa case. The court considered petitioners' section 1252(i) claims, but found that this provision did not provide petitioners with a private cause of action.
We agree with the District Court that the issues of failure to state a cognizable claim under section 1252(a) and lack of jurisdiction were resolved in the earlier case and thus are barred by res judicata. We find that the District Court was without jurisdiction to reach the merits of respondents' argument that section 1252(i) does not create a private cause of action for incarcerated aliens with respect to all petitioners with the exception of Benjamin Prieto. Because the District Court had jurisdiction over Prieto, we consider the issue of whether section 1252(i) provides for a private cause of action. We find that it does not. Accordingly, we AFFIRM the judgment of the District Court insofar as the court found that the issues of (1) failure to state a cognizable claim under section 1252(a), and (2) lack of jurisdiction under section 1252(a) were resolved in the earlier case and thus are barred by res judicata, and that section 1252(i) does not provide Prieto with a private cause of action.
Petitioners essentially argue that the District Court improperly found that their claims had been resolved in the earlier Ganem-Issa case. 2 A panel of this Court affirmed the former Ganem-Issa decision in which the court granted respondents' motion to dismiss, stating:
A detainer which adversely affects a prisoner's classification and eligibility for rehabilitative programs does not activate a due process right....
Moreover, deportation proceedings are civil in nature, and failure to provide a speedy hearing on a deportation charge does not implicate sixth amendment rights; therefore, the petitioner has no remedy under the Interstate Agreement on Detainers of the Speedy Trial Act....
Finally, 8 U.S.C. Sec. 1252(a) 3 is inapplicable because the petitioner is not in custody and awaiting a deportation hearing, as a result of any INS action. Rather the petitioner is incarcerated on federal drug convictions which are unrelated to his alien status.
Ganem-Issa (citations omitted, footnote added).
The District Court properly found that petitioners are barred from again raising these issues because they have been litigated previously.
Respondents contend that the District Court improperly assumed jurisdiction over petitioners. 4 Respondents argue that a deportable alien serving a criminal sentence should not be permitted to use a habeas proceeding to challenge an INS detainer because the INS does not maintain custody over deportable aliens. Respondents contend that although they argued below that jurisdiction over petitioners was lacking, the District Court, without specifically ruling on the issue, assumed jurisdiction.
The District Court stated that the issue of lack of jurisdiction was resolved in the prior litigation between the parties. The previous litigation, as noted above, resulted in a finding that section 1252(a) was inapplicable because the petitioners are not in custody as a result of INS action. Although the present case differs from the prior litigation to which the court refers in that the present litigation involves a petition for a writ of habeas corpus whereas the prior litigation involved a petition seeking a writ of mandamus, section 1252(a) is applicable only where an alien is taken into custody. Because section 1252(a) has previously been determined to be inapplicable, the District Court properly found that petitioners were barred from raising the issue.
The District Court did not discuss the issue of jurisdiction with respect to petitioners' section 1252(i) 5 claim. In order for the District Court to have jurisdiction over petitioners' habeas claims, petitioners must be in the custody of the INS. See 28 U.S.C. Sec. 2241(c). Although petitioners seek injunctive relief in addition to a writ of habeas corpus, the injunctive relief they seek is an order enjoining the BOP from raising the custody classification of petitioners. Petitioners are in the custody of the BOP; thus jurisdiction with respect to the injunctive relief sought was proper. That issue, however, was properly found to be barred by res judicata. With respect to section 1252(i), petitioners seek habeas relief. 6 Thus we must consider whether the District Court has jurisdiction over such a habeas claim.
The District Court properly found that petitioners are not in the custody of the INS. Thus there can be no habeas jurisdiction over petitioners' claims against the INS. As the Eighth Circuit recently noted, Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2105, 104 L.Ed.2d 666 (1989). The petitioner in Campillo attempted to compel the INS, through a petition for a writ of habeas corpus, to provide an immediate hearing and disposition of deportation proceedings upon the filing of an INS detainer with the penal facility at which the alien is incarcerated. Like petitioners in the present case, Campillo was incarcerated at the time the INS filed a notice of detainer with the United States Marshal who had custody of Campillo. In finding that the District Court was without jurisdiction to consider Campillo's challenge to the INS detainer, the court stated:
In this case, Campillo seeks relief from the consequences of a detainer filed by the INS. The detainer, however, does not purport to effect [sic] Campillo's status as a sentenced federal offender, but merely notifies prison officials that a decision regarding his deportation will be made by the INS at some future date. The filing of such a document is insufficient, we believe, to alter Campillo's status as a custodial detainee of the federal prison system. Campillo may not challenge the detainer by way of habeas corpus until he is placed in the custody of the INS, an event which will not occur until...
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