Frias v. Immigration and Customs Enforcement

Filing 4

OPINION AND ORDER. The Petition for Writ of Habeas Corpus 1 filed by Elio Diequez Frias is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to enter judgment accordingly and CLOSE this case. The Clerk is directed to terminate any pending motions in this case. Signed by Judge Charlene Edwards Honeywell on 8/27/2013. (BGS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ELIO DIEQUEZ FRIAS,
Petitioner,
v.

CASE NO. 6:13-cv-1239-Orl-36DAB

IMMIGRATION AND CUSTOMS
ENFORCEMENT,
Respondent.
ORDER
Petitioner initiated this action for habeas corpus relief pursuant to 28 U.S.C. §§ 2241
(Doc. No. 1). Rule 41 of the Rules Governing Section 2254 Cases in the United States
District Courts provides in pertinent part:
The clerk must promptly forward the petition to a judge under the court's
assignment procedure, and the judge must promptly examine it. If it plainly
appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and
direct the clerk to notify the petitioner. If the petition is not dismissed, the
judge must order the respondent to file an answer, motion, or other response
within a fixed time, or to take other action the judge may order. In every
case, the clerk must serve a copy of the petition and any order on the
respondent and on the attorney general or other appropriate officer of the
state involved.

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Pursuant to Rule 1(b) of the Rules Governing Section 2254 Cases in the United
States District Courts, Rule 4 may be applied to cases brought pursuant to 28 U.S.C. § 2241.
“Therefore, summary dismissal of a habeas corpus action brought pursuant to 28 U.S.C.
§ 2241 is appropriate when the petition ‘plainly reveals that relief is not warranted.’”
Trimble v. Allen, 2011 WL 672335, *1 (M.D. Ga. 2011) (quoting Ugwu v. Holder, No.
1:10-CV-03152, 2010 U.S. Dist. LEXIS 137438 at *1-2, 2010 WL 5476712 (N. D. Ga. Nov. 29,
2010)).

Upon review of the petition, the Court concludes that it must be dismissed based on lack
of jurisdiction.
I.

Procedural History
Petitioner alleges that he is a native and citizen of Cuba who is currently detained

at the Brevard County Jail pending the disposition of state criminal charges. (Doc. No. 1
at 9.) Petitioner contends that after his arrest, the United States Immigration and Customs
Enforcement (“ICE”) filed a detainer against him “for his future apprehension and
detention pending a deportation. . . .” Id. Petitioner notes that he was ordered deported
in 1987, and after being held in federal prison for twelve years, the Ninth Circuit Court of
Appeals ordered him to be released. Id. at 10-11. Petitioner asserts that he cannot be
deported because of the absence of a treaty between the United States and Cuba and that
his future detention at an immigration detention center will violate his constitutional rights.
Id. at 12. Petitioner requests the Court to order Respondent to demonstrate that he would
be immediately deported in accordance with the law or to otherwise cancel all immigration
detainers against him. Id. at 12.
II.

Legal Discussion
Upon review of the petition, the Court concludes that it lacks jurisdiction to hear the

petition. “A petitioner can use a § 2241 petition to challenge custody alleged to be in
violation of the Constitution or laws of the United States.” Louis v. Sec’y, Fl. Dep’t of Corr.,
No. 12-14418, 2013 WL 3939937, *1 (11th Cir. July 31, 2013) (citing 28 U.S.C. § 2241(c)(3)).
“‘[T]he filing of [a] detainer, standing alone, [does] not cause [the petitioner] to come
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within the custody of [immigration officials].’” Gonzales-Corrales v. I.C.E., No. 12-16509,
2013 WL 3154942, *3 (11th Cir. June 21, 2013) (quoting Orozco v. INS, 911 F.2d 539, 541 (11th
Cir. 1990)). “[A]bsent custody by the authority against whom relief is sought, jurisdiction
will not lie to grant the writ.” Id. (quoting Orozco, 911 F.2d at 541).
Petitioner alleges that ICE has lodged a detainer against him. Nevertheless,
Petitioner does not allege that removal proceedings have commenced or that he has been
taken into ICE custody. Instead, Petitioner is in the custody of the Brevard County Jail
pending state criminal charges. Because Petitioner is not in ICE custody, this Court lacks
subject-matter jurisdiction to consider the § 2241 petition against ICE.

See, e.g.,

Gonzales-Corrales, 2013 WL 3154942, *3 (affirming district court’s dismissal of § 2241 petition
based on lack of jurisdiction).
Any of Petitioner’s allegations not specifically addressed herein have been found to
be without merit.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

The Petition for Writ of Habeas Corpus (Doc. No. 1) filed by Elio Diequez

Frias is DISMISSED WITHOUT PREJUDICE.
2.

The Clerk of the Court shall enter judgment accordingly and close this case.

3.

The Clerk of Court shall terminate any motions pending in this case.

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DONE AND ORDERED at Orlando, Florida, this 27th day of August, 2013.

Copies to:
OrlP-1 8/27
Elio Diequez Frias

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