Sanchez-Rosario v. Immigration and Customs Enforcement

Filing 5

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Arturo Sanchez-Rosario be DISMISSED. Objections to R&R due by 7/23/2012. Signed by Magistrate Judge Mark R. Abel on 7/6/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Arturo Sanchez Rosario,
Petitioner

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Case No. 2:12-cv-0488

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Judge Frost

Immigration and Customs Enforcement
and Warden, Marion Correctional
Institution,

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Magistrate Judge Abel

Respondents

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v.

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REPORT AND RECOMMENDATION
Petitioner Arturo Sanchez Rosario, a prisoner at the Marion Correctional Institution,
brings this action for writ of habeas corpus under 28 U.S.C. §2251, which he styles a petition to vacate pending charges and detainer. This matter is before the Magistrate Judge for
preliminary consideration of the petition.
Petitioner is apparently serving a state prison sentence. The petition alleges that on
November 18, 2009 the Immigration and Naturalization Service served a detainer against
him, but he has not been "brought to trial" on the "charges" within 180 days as required by
the Interstate Agreement on Detainers. The petition does not identify the "charge" against
petitioner nor the jurisdiction in which the charge is pending.
Unless the violation of theInterstate Agreement on Detainers involves "a fundamental defect which inherently results in a complete miscarriage of justice," habeas corpus
relief is not available. Mars v. United States, 615 F.2d 704, 707 (6th Cir. 1980). Here the
petition does not allege circumstances that would merit habeas corpus relief. Further, the

petition does not allege that petitioner has exhausted his Ohio court remedies regarding the
state's accepting the detainer and continuing to hold him subject to it. See, Braden v. 30th
Judicial Circuit Court of Kentucky, 410 U.S. 484, 493 (1973); Norris v. State of Georgia, 522 F.2d
1006, 1010-11 (4th Cir. 1975).
More fundamentally, a detainer filed by Immigration and Customs Enforcement
with state prison officials does not fall within the terms of the Interstate Agreement on
Detainers. Moreno Escobar v. U.S. Department of Justice, 2005 WL 1060635 (E.D. Pa. May 5,
2005); Dang v. United States, 2002 WL 1766401 (N.D. Calif. July 30, 2002); United States v.
Gonzalez-Mendoza, 985 F.2d 1014, 1116 (9th Cir. 1993);
Accordingly, the Magistrate Judge RECOMMENDS that petition to vacate pending
charges and detainer DISMISSED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the Court,
specifically designating this Report and Recommendation, and the part thereof in question,
as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b), Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. Thomas v. Arn, 474 U.S.
140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also, Small v.
Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

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The Clerk of Court is DIRECTED to mail or email a copy of this Report and
Recommendation to the Attorney General of Ohio, Corrections Litigation Section, 150 East
Gay Street 16th Floor, 43215 and the United States Attorney for the Southern District of
Ohio.

s/Mark R. Abel
United States Magistrate Judge

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