Petrovic v. Quintana

Filing 15

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

JOVICA PETROVIC,

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Petitioner,
v.
FRANCISCO QUINTANA, Warden,
Respondent.

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Civil No. 16-282-JMH

MEMORANDUM OPINION and
ORDER

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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
[DE 1].

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
14].

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.

They

further disagree as to whether the Court has jurisdiction under §
2241 to determine the propriety of whichever detainer is lodged
against Petrovic.

For obvious reasons, the latter issue must be

addressed first.
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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].
though,

that

“[i]n

order

for

the

It is well-settled,

District

Court

to

have

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
authorities

to

challenge

[his]

detention,

as

an

immigration

detainer itself does not confer custody to the INS.”
Estrada

v.

Warden,

FCI-Manchester,

Martinez-

6:06-CV-201-DCR,

2947880, *1 (E.D. Ky. Oct. 16, 2006).

2006

WL

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.
828

F.3d

at

451.

However,

that

does

him

no

good

Shuti,
as

his

removability is not based upon any convictions falling under this
particular definition.
Petrovic’s detainer indicates that he is the subject of an
immigration enforcement priority, and thus requests that he be
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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.”
Exhibit B.]

[DE 12,

In the instant case, Petrovic was convicted of,

inter alia, interstate stalking.

[DE 12, Exhibit D.]

Under 8

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. §
1227a(2)(E)(i).
Petrovic’s

Thus,

removability

assuming
is

the

based

Court

upon

has

his

jurisdiction,

convictions

stalking, not for a “crime of violence” per se.

for

Thus, Shuti v.

Lynch is inapplicable to the instant matter.
Accordingly,
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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