Roldan v. Racette
| Decision Date | 22 January 1993 |
| Docket Number | D,No. 1684,1684 |
| Citation | 984 F.2d 85 |
| Parties | Orlando ROLDAN, Petitioner-Appellant, v. James RACETTE, Superintendent, Adirondack Correctional Facility, and U.S. Immigration & Naturalization Service, Respondents-Appellees. ocket 91-2544. |
| Court | U.S. Court of Appeals — Second Circuit |
Randolph Z. Volkell, North Merrick, NY, for petitioner-appellant.
William C. Pericak, Asst. U.S. Atty. for the N.D. of N.Y., Albany, NY (Gary L. Sharpe, U.S. Atty. for the N.D. of N.Y., Albany, NY, of counsel), for respondent-appellee U.S. I.N.S.
Robert Abrams, Atty. Gen. of the State of N.Y. John McConnell, Asst. Atty. Gen. of the State of NY, Albany, NY, for respondent-appellee James Racette, Superintendent, Adirondack Correctional Facility.
Before: CARDAMONE, WINTER, and MAHONEY, Circuit Judges.
Petitioner-appellant Orlando Roldan appeals from a judgment entered October 29, 1991 in the United States District Court for the Northern District of New York, Howard G. Munson, Judge, that dismissed Roldan's application for a writ of habeas corpus. The district court, adopting a report-recommendation of Ralph W. Smith, Jr., Magistrate Judge, entered September 10, 1991, ruled that Roldan was not "in custody" within the meaning of 28 U.S.C. § 2241(c)(3) (1988), thus precluding habeas corpus jurisdiction.
We dismiss the appeal for lack of subject matter jurisdiction.
Roldan, a native and citizen of Colombia, entered the United States in 1981 without inspection by any representative of the United States Immigration and Naturalization Service ("INS"). His petition asserts that on September 4, 1987, he was convicted in the Dutchess County Court in the State of New York of assault in the first degree and sentenced to an indeterminate prison term of two to six years. 1 In August 1988, Roldan was released from state prison on parole and placed in the custody of the INS.
Following a deportation hearing, Roldan was deported from the United States to Colombia on August 12, 1988. According to Roldan, the INS failed to notify him at that hearing of his legal rights, including the possibility of defending against the deportation based upon his 1983 marriage to an American citizen, or of the fact that subsequent reentry into the United States would constitute a violation of his parole.
In October 1989, Roldan reentered the United States without inspection. He was subsequently arrested for driving while intoxicated ("DWI"). The DWI offense and reentry into the United States were considered violations of his parole. Accordingly, Roldan's parole was revoked and he was recommitted to state prison to serve an additional twenty-four months of his state prison sentence.
On June 20, 1990, while Roldan was incarcerated, the INS began a proceeding to deport him by issuance of an order to show cause and warrant of arrest. The grounds for the proposed deportation were his reentry into the United States without inspection and his 1987 state conviction. In support of that proceeding, the INS lodged a detainer against Roldan with the state prison officials so that Roldan could be released into INS custody at the expiration of his state sentence.
On March 22, 1991, Roldan filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988). The named respondents were the INS and James Racette, superintendent of the Adirondack Correctional Facility, where Roldan was then imprisoned. The petition did not challenge the underlying state conviction, but rather "the miscarriage of justice and the violation of [Roldan's] rights which occurred at the 1988 INS proceedings against [him]."
The matter was referred to Magistrate Judge Smith. Thereafter, respondents moved to dismiss the petition for lack of subject matter jurisdiction. The INS contended that although Roldan was challenging the procedures employed in his earlier deportation hearing, he was not in the custody of the INS because the mere filing of a detainer did not satisfy the custody requirement for habeas corpus jurisdiction. The state respondent argued that because Roldan was in custody pursuant to a determination that he violated his parole and did not challenge either that determination or the underlying state conviction, there was no claim that his imprisonment met the requirements of federal law for the provision of habeas relief to a state prisoner.
Addressing these motions, the magistrate judge entered a report-recommendation on September 10, 1991 that proposed dismissal of the petition for failure to satisfy the "in custody" requirement of 28 U.S.C. § 2241(c)(3). The magistrate found that Roldan's incarceration in state prison was not determined by the allegedly defective 1988 deportation hearing, and that the INS detainer did not "place [Roldan] within INS custody for purposes of this action."
The report-recommendation was served upon the parties by certified mail. It included the following notice:
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to lodge written objections to the foregoing report.... FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
Roldan acknowledged his receipt of the magistrate's report on September 9, 1991. No objections were filed. On October 29, 1991, Judge Munson entered an order that approved the report-recommendation and dismissed Roldan's petition. A corresponding judgment was entered on that date. Roldan filed a notice of appeal on November 12, 1991, and the district court issued a certificate of probable cause on December 9, 1991.
In December 1991, Roldan was released from state custody and was taken into custody by the INS. In January 1992, Roldan was deported to Colombia. The INS subsequently filed a motion, joined by Racette, which sought dismissal of the appeal pursuant to Small v. Secretary of Health & Human Services, 892 F.2d 15 (2d Cir.1989) (per curiam), for Roldan's failure to object to the report-recommendation of the magistrate judge.
Roldan's habeas petition named as respondents both the superintendent of the New York correctional facility where he was incarcerated and the INS, which had lodged a detainer regarding Roldan with the state prison authorities prior to Roldan's application for habeas relief. We accordingly address Roldan's challenges to (1) his state custody, and (2) the INS detainer.
The magistrate judge's report-recommendation regarded Roldan as effectively seeking relief only "against the INS even though he is not in INS custody." The magistrate judge was certainly justified in that view.
Roldan's petition "challenge[d] proceedings of the INS, Buffalo office, with respect to a deportation hearing," and further contended that his state confinement was "illegal in that it was predicated upon the miscarriage of justice and the violation of my rights that occurred at the 1988 INS proceedings against me." There was no claim that there was any infirmity in the state proceedings that led to Roldan's initial conviction for assault.
Further, we cannot conclude that his subsequent imprisonment as a parole violator by New York State constituted "custody in violation of the Constitution or laws or treaties of the United States" within the meaning of 28 U.S.C. §§ 2241(c)(3) and 2254(a) simply because the INS allegedly failed to advise him at his 1988 deportation proceeding that illegal reentry would constitute a violation of his state parole. In any event, Roldan could hardly contend that his DWI conviction, an additional basis for his parole revocation, was attributable to the 1988 deportation proceeding.
We conclude that Roldan presented no significant challenge to his state custody. Considerations of mootness regarding this issue accordingly need not be addressed.
Construing Roldan's pro se habeas petition liberally, see Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir.1983), it is possible to read it as challenging the INS detainer. The magistrate judge took this view of Roldan's petition, but concluded that the filing of the INS detainer did not place Roldan within INS custody, with the result that Roldan did not satisfy the "in custody" predicate of §§ 2241(c)(3) and 2254 for habeas relief against the INS. In so ruling, the magistrate judge relied upon Orozco v. INS, 911 F.2d 539, 541 (11th Cir.1990) (per curiam), and Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir.1988), cert. denied, 490 U.S. 1082, 109 S.Ct. 2105, 104 L.Ed.2d 666 (1989).
These cases express the clear majority view 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. See Orozco, 911 F.2d at 540-41 (following Campillo ); Campillo, 853 F.2d at 595 (); see also Prieto v. Gluch, 913 F.2d 1159, 1162-64 (6th Cir.1990) (following Campillo ), cert. denied, --- U.S. ----, 111 S.Ct. 976, 112 L.Ed.2d 1061 (1991); Lepez-Mejia v. INS, 798 F.Supp. 625, 627 (C.D.Cal.1992) (); Severino v. Thornburgh, 778 F.Supp. 5, 6 (S.D.N.Y.1991) (); Paulino v. Connery, 766 F.Supp. 209, 210-11 (S.D.N.Y.1991) (); Soler v. INS, 749...
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