Mesa v. Barnes

Filing 10

ORDER granting 8 Motion to Dismiss Secretary, Department of Corrections, and dismissing without prejudice 5 Amended petition for writ of habeas corpus, with directions to the Clerk of Court. Signed by Judge Timothy J. Corrigan on 1/16/2018. (LPB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ANTONIO SUAREZ MESA,
Petitioner,
v.

Case No. 3:14-cv-1484-J-32PDB

SECRETARY, FLORIDA
DEPARTMENT OF
CORRECTIONS,
Respondent.
ORDER
Petitioner Antonio Suarez Mesa, an inmate of the Florida penal system,
initiated this action by filing a pro se petition for a writ of habeas corpus under 28
U.S.C. § 2241 (Doc. 1), which he later amended (Doc. 5) (Amended Petition). Mesa
challenges an immigration detainer issued by the Department of Homeland Security,
Immigration and Customs Enforcement (ICE). Mesa names one respondent: the
Secretary for the Florida Department of Corrections (FDOC). Respondents filed a
Limited Response to Order to Show Cause and Motion to Dismiss Secretary of the
Florida Department of Corrections as an Improper Party (Response) (Doc. 8) and
attached exhibits (Resp. Ex.). Mesa replied (Reply) (Doc. 9).
Mesa is a native of Cuba who entered the United States without inspection on
March 31, 1992. See Am. Petition at 6, 8. In 1996, he was convicted in Hillsborough
County of first degree murder and was sentenced to life in prison with the possibility

of parole in twenty-five years. Id. at 6, 8. In 1999, ICE (formerly the United States
Immigration and Naturalization Service) lodged a federal immigration detainer with
FDOC. 1 Id. at 7, 8.
On November 27, 2011, Mesa filed a federal petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241 in the Southern District of Florida challenging the
federal ICE detainer. Resp. Ex. A. In a report, a magistrate judge recommended
dismissal of Mesa’s petition for lack of jurisdiction, or in the alternative, denial of the
petition. Resp. Ex. C at 12. The district court ratified, adopted, and affirmed the
report and denied Mesa’s petition. Resp. Ex. C at 1. He subsequently filed this case.
In Mesa’s Amended Petition, he challenges the issuance of the immigration
detainer.

Am. Petition at 2.

He states the relief he requests from this Court:

“Order the removal of the detainer and/or recall the detainer placed on Petitioner
pending the immigration hold, based on the executive orders of President B.H.
Obama’s Nov. 20, 2014 order.” Id. at 9. “Under certain circumstances, challenges to
detainers may . . . be brought under § 2241.” Orozco v. I.N.S., 911 F.2d 539, 541 (11th
Cir. 1990) (citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 498

An immigration detainer “serves to advise another law enforcement agency
that [ICE] seeks custody of an alien presently in the custody of that agency, for the
purpose of arresting and removing the alien” and “is a request that such agency advise
[ICE], prior to release of the alien, in order for [ICE] to arrange to assume custody, in
situations when gaining immediate physical custody is either impracticable or
impossible.” 8 C.F.R. § 287.7(a); see also Gonzales-Corrales v. I.C.E., 522 F. App’x 619,
621, n.2 (11th Cir. 2013).
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(1973)). However, because ICE is not a party to this § 2241 action, this Court has no
jurisdiction over ICE. 2
Mesa names the FDOC as the respondent, which is generally appropriate in a
§2241 action because Mesa is currently in the physical custody of the FDOC. See
Rumsfield v. Padilla, 542 U.S. 426, 435 (2004). However, the FDOC did not issue and
has no control over the existence of the immigration detainer. 3 As such, this action
is due to be dismissed. See Louis v. Sec’y, Fla. Dep’t of Corr., 524 F. App’x 583 (11th
Cir. 2013). 4

Even if Mesa had named ICE as a party, he would need to demonstrate that
he is in ICE custody in order for jurisdiction to lie under §2241. The existence of an
ICE detainer alone does not render a petitioner in ICE custody for purposes of §2241.
See Orozco, 911 F.2d at 541.
2

In one sentence, Mesa states that the immigration “detainer obstructs his
parole eligibility criteria.” Am. Petition at 8. He does not request relief, but rather
describes an effect of the immigration detainer. Reading his pro se Amended Petition
liberally, however, to the extent Mesa seeks to challenge the effect of the immigration
detainer on his parole eligibility, such a challenge appears to be premature. Mesa
does not supply any information about his eligibility for parole, but based on his
offense and conviction dates, it does not appear that he has completed the mandatory
twenty-five years of incarceration.
3

Although the Court does not rely on unpublished opinions as precedent, they
may be cited throughout this Order as persuasive authority on a particular point.
Rule 32.1 of the Federal Rules of Appellate Procedure expressly permits the Court to
cite to unpublished opinions that have been issued on or after January 1, 2007. Fed.
R. App. P. 32.1(a).
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Accordingly, it is
ORDERED:
1. Respondents’ Limited Response to Order to Show Cause and Motion to
Dismiss Secretary of the Florida Department of Corrections as an Improper
Party (Doc. 8) is GRANTED.
2. The Amended Petition for Habeas Corpus Under 28 U.S.C. § 2241 (Doc. 5) is
DISMISSED WITHOUT PREJUDICE.
3. The Clerk of Court shall enter judgment dismissing the Petition without
prejudice and closing the file.
4. If Petitioner appeals the dismissal of the Petition, the Court denies a
certificate of appealability. 5

Because this Court has determined that a

certificate of appealability is not warranted, the Clerk of the Court shall
terminate from the pending motions report any motion to proceed on appeal

This Court should issue a certificate of appealability only if the Petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this substantial showing, Petitioner “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or that “the issues presented were
‘adequate to deserve encouragement to proceed further.’” Miller-Eli v. Cockrell, 537
U.S. 322, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Here, after consideration of the record as a whole, a certificate of appealability is not
warranted.
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as a pauper that may be filed in this case. Such termination shall serve as
a denial of the motion.
DONE AND ORDERED in Jacksonville, Florida this 16th day of January,
2018.

lc22
Copies to:

Antonio Suarez Mesa, #TO2682
Counsel of record

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