Soukchanh v. Zuniga et al

Filing 6

FINDINGS and RECOMMENDATION to Dismiss 1 Petition for Lack of Habeas Jurisdiction, signed by Magistrate Judge Jennifer L. Thurston on 3/30/17. Referred to Judge Ishii. 21-Day Objection Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OUDOM SOUKCHANH,

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Petitioner,

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v.

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RAFAEL ZUNIGA, Warden, et al.,

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Respondents.

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Case No.: 1:17-cv-00320-AWI-JLT (HC)
FINDINGS AND RECOMMENDATION TO
DISMISS PETITION FOR LACK OF HABEAS
JURISDICTION
[TWENTY-ONE DAY OBJECTION DEADLINE]

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Petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He

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challenges a detainer filed against him by the Immigration and Customs Enforcement (“ICE”).

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Because the Court is without jurisdiction to entertain his claims, the Court will recommend the petition

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be DISMISSED.

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I.

BACKGROUND

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Petitioner is incarcerated at the Federal Correctional Institution located in Mendota, California.

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He is currently serving a sentence for conviction of possession of methamphetamine and possession of

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a firearm in furtherance of a drug crime.

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Petitioner is a citizen of Laos. In February or March of 2006, ICE lodged a detainer against

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him claiming he is an alien subject to removal from the United States. Petitioner disagrees and alleges

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the detainer is improper because he is a national from Laos, and Laos does not maintain formal
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diplomatic relations with the United States. Therefore, he argues, the detainer is frivolous because

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removal cannot be accomplished. He further claims his detainer status prevents him from gaining

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access to federally-designated programs. He seeks an order directing that the detainer be removed.

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II.

DISCUSSION

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A. Preliminary Review of Petition

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Rule 4 of the Rules Governing Section 2254 Cases1 requires the Court to make a preliminary

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review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it

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plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in

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the district court . . . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). The Court

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may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to

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the respondent’s motion to dismiss, or after an answer to the petition has been filed. Advisory

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Committee Notes to Habeas Rule 8.

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B. No Jurisdiction to Consider ICE Detainer

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A prisoner may not challenge an ICE detainer in a petition for writ of habeas corpus under 28

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U.S.C. § 2241. Federal jurisdiction over a petition for writ of habeas corpus exists only for persons

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“in custody” at the time the petition is filed. See 28 U.S.C. § 2241(c). An ICE detainer “does not

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sufficiently place an alien in [ICE] custody to make habeas corpus available.” Campos v. INS, 62

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F.3d 311, 314 (9th Cir. 1995) (quoting Garcia v. Taylor, 40 F.3d 299, 303 (9th Cir. 1994), superseded

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by statute on other grounds). The Ninth Circuit has recognized one exception to this rule, i.e., where

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an alien is “subject to a final order of deportation,” the alien is “‘in custody’ for purposes of the

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[Immigration and Nationality Act (‘INA’)], and therefore may petition a district court for habeas

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review of that deportation order.” See Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.

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1995); see also Veltmann-Barragan v. Holder, 717 F.3d 1086, 1088 (9th Cir. 2013). Under the INA,

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an “order of deportation” determines that an alien is deportable and orders deportation. See 8 U.S.C. §

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1101(a)(47). Such an order becomes final upon the earlier of a determination by the Board of

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Immigration Appeals (“BIA”) affirming the order, or the expiration of the time to seek BIA review.

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The Rules Governing Section 2254 Cases in the United States Courts (Habeas Rules) are appropriately applied to
proceedings undertaken pursuant to 28 U.S.C. § 2241. Habeas Rule 1(b).

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Petitioner has not alleged that he is subject to a final removal or deportation order. Petitioner

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alleges only that there is an ICE detainer in his file but has provided no information regarding the

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detainer, or whether he had been subject to deportation proceedings. From these allegations, it appears

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that Petitioner is challenging an ICE detainer without a final removal order. Petitioner has not alleged

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sufficient facts to establish he is in custody based on the detainer as to confer habeas jurisdiction.

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Campos, 62 F.3d at 314; Garcia v. Taylor, 40 F.3d at 303.

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C. Challenge to Exclusion from Federal Programs

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Petitioner argues that his immigration detainee status prohibits him from access to federal

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designated “early release” programs available under 18 U.S.C. §§ 3621 and 3624. Section 3621(e)

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provides for residential drug abuse treatment (“RDAP”) and incentives for completion of the

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treatment, including sentence reduction. See Section 3621(e)(2)(B) (“The period a prisoner convicted

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of a nonviolent offense remains in custody after successfully completing a treatment program may be

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reduced by the Bureau of Prisons, but such reduction may not be more than one year from the term the

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prisoner must otherwise serve.”) However, immigration detainees are not eligible for early release

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under Section 3621(e). See 28 C.F.R. § 550.55(b)(1).
The Administrative Procedures Act, 5 U.S.C. §§ 701-706 (“APA”), specifically denies the

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Court the authority to review the Bureau of Prison’s (“BOP”) decisions under 18 U.S.C. § 3621. In

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Reeb v. Thomas, 636 F.3d 1224, 1227 (9th Cir. 2011), the Ninth Circuit held that 18 U.S.C. § 3625

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precludes judicial review of “any determination” made by the BOP pursuant to 18 U.S.C. §§ 3621-

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3624.

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There is no ambiguity in the meaning of 18 U.S.C. § 3625. The plain language of this
statute specifies that the judicial review provisions of the APA . . . do not apply to ‘any
determination, decision, or order’ made pursuant to 18 U.S.C. §§ 3621-3624 . . . . To
find that prisoners can bring habeas petitions under 28 U.S.C. § 2241 to challenge the
BOP's discretionary determinations made pursuant to 18 U.S.C. § 3621 would be
inconsistent with the language of 18 U.S.C. § 3625.

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Reeb, 636 F.3d at 1227; see also Close v. Thomas, 653 F.3d 970, 973 (9th Cir. 2011) (noting same).
Reeb clarified that judicial review remains available for allegations that a BOP action is

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contrary to established federal law, violates the United States Constitution, or exceeds its statutory

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authority. Reeb, 636 F.3d at 1228; Close, 653 F.3d at 973-74. However, as in Reeb, Petitioner has
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made no such showing that judicial review remains available. Petitioner alleges that Respondents

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abused their authority in reissuing his ICE detainer. While Petitioner generally couches his claim as

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one concerning his due process and liberty interests, any such claim must necessarily fail.
Further, Petitioner cannot prevail on his general due process claim because inmates do not

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have a protected liberty interest in either RDAP participation or in its associated discretionary early

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release benefit, or in pre-release placement in a community correctional facility. See Greenholtz v.

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Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (determining that a prisoner does not

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have a constitutional right to be released prior to the expiration of a valid sentence); Moody v.

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Daggett, 429 U.S. 78, 88 n.9 (1976) (concluding that discretionary determinations regarding

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conditions of confinement do not create due process rights); Peck v. Thomas, 697 F.3d 767, 774 (9th

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Cir. 2012) (inmate has no liberty interest in sentence reduction in exchange for completion of RDAP).
For these reasons, Petitioner's allegations are insufficient to confer habeas jurisdiction for the

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Court to consider Petitioner's challenge to his exclusion from the early release programs.
Finally, the Court notes that Petitioner's citation to Dinh Tran Canh v. United States, 2013 U.S.

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Dist. Lexis 120358 (2013), does not provide a basis for jurisdiction. The detainee in that case sought

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an order lifting his immigration detainer via habeas petition. However, before any responsive pleading

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was filed, ICE issued a notice lifting the immigration detainer which mooted that action. There was no

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determination of jurisdiction. Id.

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III.

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RECOMMENDATION
Accordingly, the Court RECOMMENDS that the instant petition for writ of habeas corpus be

DISMISSED with prejudice for failure to state a claim.
This Findings and Recommendation is submitted to the United States District Court Judge

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assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the

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Local Rules of Practice for the United States District Court, Eastern District of California. Within

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twenty-one days after being served with a copy, Petitioner may file written objections with the court

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and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling

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pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

March 30, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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