Petrovic v. Quintana
MEMORANDUM OPINION & ORDER: It is ordered that 1 petition for writ of habeas corpus is DENIED. Separate judgment shall this date be entered. Signed by Judge Joseph M. Hood on 2/22/2017.(SCD)cc: COR,Pro Se Petitioner(via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
FRANCISCO QUINTANA, Warden,
Civil No. 16-282-JMH
MEMORANDUM OPINION and
Jovica Petrovic, an individual currently serving a sentence
at the Federal Medical Center in Lexington, Kentucky, has filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241
In his petition, Petrovic alleges that the Warden is
unconstitutionally honoring a detainer lodged against him by the
Department of Homeland Security in violation of Shuti v. Lynch,
828 F.3d 440 (6th Cir. 2016).
The Warden has filed a response to
the petition [DE 12] and Petrovic has in turn filed a reply [DE
For the reasons which follow, the petition for a writ of
habeas corpus is DENIED.
The parties disagree as to which detainer is in effect.
further disagree as to whether the Court has jurisdiction under §
2241 to determine the propriety of whichever detainer is lodged
For obvious reasons, the latter issue must be
Jurisdiction in a habeas corpus action under § 2241 exists
when a petitioner asserts that his current custody is “in violation
of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). In the instant case, Petrovic is asserting
that his future detention is illegal [DE 1].
It is well-settled,
jurisdiction over petitioners’ habeas claims, petitioners must be
in custody of the INS.” See Prieto v. Gluch, 913 F.2d 1159, 1162
(6th Cir. 1990)(citing 28 U.S.C. § 2241(c)).
Here, Petrovic is
clearly in the custody of the Bureau of Prisons. “[A] prisoner
must wait until he comes into the custody of the INS or ICE
detainer itself does not confer custody to the INS.”
2947880, *1 (E.D. Ky. Oct. 16, 2006).
Thus, the Court lacks
jurisdiction to address Petrovic’s petition.
Nevertheless, Petrovic is correct that Shuti stands for the
proposition that the Immigration and Nationality Act’s residual
definition of “crime of violence” is void for vagueness.
removability is not based upon any convictions falling under this
Petrovic’s detainer indicates that he is the subject of an
immigration enforcement priority, and thus requests that he be
held for a period not to exceed 48 hours beyond the time he would
have otherwise been released from custody to allow DHS to assume
custody, because he “has been convicted of an offense classified
as a felony, other than a state or local offense for which an
essential element was the alien’s immigration status.”
In the instant case, Petrovic was convicted of,
inter alia, interstate stalking.
[DE 12, Exhibit D.]
U.S.C. § 1227, “[a]ny alien who at the time after admission is
convicted of...a crime of stalking...is deportable.” 8 U.S.C. §
stalking, not for a “crime of violence” per se.
Thus, Shuti v.
Lynch is inapplicable to the instant matter.
IT IS ORDERED that Petrovic’s petition for a writ of habeas
corpus [DE 1] be, and the same hereby is, DENIED.
A separate judgment shall this date be entered.
This the 22nd day of February, 2017.
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