JAMES v. REBERT et al
MEMORANDUM/OPINION THAT THE REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE TIMOTHY R. RICE IS APPROVED AND ADOPTED. THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED WITH PREJUDICE; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY; AND THE CLERK OF COURT SHALL MARK THIS CASE CLOSED FOR STATISTICAL PURPOSES. SIGNED BY HONORABLE JEFFREY L. SCHMEHL ON 8/13/14. 8/14/14 ENTERED AND COPIES MAILED TO PRO SE'.(ky, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
PETER A. JAMES,
York, PA D.A.; SETH WILLIAMS,
Philadelphia D.A.; THOMAS R. DECKER,
Director for Detention; JOHN DELANEY,
Ex Warden; and MICHELLE FARRELLE,
August 13, 2014
Petitioner Peter A. James, convicted of robbery and related offenses, was
sentenced to seven to fifteen years of imprisonment and was being held at CurranFromhold Correctional Facility at the time he filed this petition. A further description of
the matter appears in the Report and Recommendation of U.S. Magistrate Judge Timothy
R. Rice. Having conducted an independent review, the Court will adopt that Report and
Recommendation and add the following brief statement to clarify and respond to
Some of Petitioner’s objections, such as Judge Rice’s mistake in implying that
Curran-Fromhold is a city or county, are at most technical issues of no consequence and
need not be addressed. Petitioner raises two issues worthy of consideration: first, whether
his custody was really pursuant to his sentence, given that he was still at CurranFromhold and not yet physically in the state correctional system at the time of his
petition; and second, whether he can challenge potential future detention associated with
the ICE detainer lodged against him.
Judge Rice’s Report ably explains that Petitioner cannot use a §2241 petition to
challenge pretrial detention or an ICE detainer once he has been convicted and is in
custody pursuant to his sentence. 1 Some of what Petitioner says in his objections can be
read as an argument that he was not in fact in custody pursuant to his sentence. This
argument can be drawn from his objection that Curran-Fromhold is not actually part of
the Pennsylvania state correctional system (it is part of the Philadelphia Prison System)
and paragraphs 11 and 12 of his objections, which imply he has shown he was held under
the detainer rather than his sentence because he was confined at Curran-Fromhold and his
social worker was trying to expedite his transfer to state custody (suggesting that he was
not yet in state custody).
However, the fact that Petitioner was not yet physically held at a state-run facility
does not mean he was not yet in state custody and serving his sentence. Once Petitioner’s
conviction and sentence were imposed, they became the basis of his custody as opposed
to pretrial detention or the ICE detainer. Depending on the length of the sentence and
some judicial discretion, criminal sentences in Pennsylvania may be served at either
county prisons or state Department of Corrections facilities. See 42 Pa. C.S.A. §9762.
The difference in facility has no bearing on whether a prisoner is in custody pursuant to
Judge Rice explains that the case law is clear that petitioners serving sentences cannot challenge ICE
detainers because they are in custody pursuant to their sentences rather than the detainers. He then turns to
Petitioner’s attack on the allegedly separate York detainer and related pretrial detention and speedy trial
violations, explaining that those issues became moot once Petitioner was sentenced and his pretrial
detention became post-trial, sentence-based detention. When Judge Rice adds that the York detainer in fact
is the ICE detainer in another guise, he is merely noting an additional reason that any challenge to the York
detainer fails (namely, that it is identical to the ICE detainer, which cannot be challenged as already
explained). Any potential confusion is simply because there are multiple reasons that being in custody
pursuant to his sentence (rather than being in pretrial detention or held under a detainer) forestalls
his sentence. Petitioner was surely accruing credit against his sentence for time served at
Curran-Fromhold, though that would be true even for time spent there prior to
sentencing. See 42 Pa.C.S. §9760; Commw. v. Domb, 237 A.2d 253, 254 (Pa. Super. Ct.
1968). Federal law, which is useful as a theoretical guide even though it does not govern
Petitioner’s state sentence, expressly provides that “[a] sentence to a term of
imprisonment commences on the date the defendant is received in custody awaiting
transportation to . . . the official detention facility at which the sentence is to be served.”
18 U.S.C.A. §3585. In a somewhat analogous situation, this Court held that a petitioner
had no cognizable §2241 claim where he was transferred from a federal facility to
Curran-Fromhold to attend state court proceedings and then remained there for about a
month after those proceedings concluded. See Lewis v. Williams, CIV.A. 13-3433, 2013
WL 4803905 (E.D. Pa. Sept. 6, 2013) (explaining that issues of transfer and particular
facilities are not habeas matters). The Court must conclude that the reason previous case
law has not directly addressed the specific question of whether a convicted and sentenced
prisoner is in custody pursuant to his sentence before he is physically transferred to a
state-run facility is that the answer is obviously yes.
On page six of his objections, Petitioner suggests that he should nevertheless be
able to challenge the ICE detainer because “a habeas corpus is not limit[ed] to immediate
release from illegal custody but is available as well to attack future confinement and
obtain future release.” Petitioner seems to be arguing that even if it is now too late to
challenge his prior confinement under the ICE detainer, he should be able to challenge
the ICE detainer as the source of custody he will be in upon completion of his sentence.
Petitioner is correct that to some extent habeas corpus relief “is available as well
to attack future confinement and obtain future releases.” Preiser v. Rodriguez, 411 U.S.
475, 487 (1973). Generally, though, “future release” in Preiser and related cases refers to
a habeas challenge to present custody when the challenge will result not in immediate
release, but merely release earlier than would otherwise have occurred. See id. (“So, even
if restoration of respondents' good-time credits had merely shortened the length of their
confinement, rather than required immediate discharge from that confinement, their suits
would still have been within the core of habeas corpus . . . .”).
In at least one case, however, the concept has been applied to allow preemptive
challenge of an immigration-related detainer. See Alvarez v. U.S. Dep't of Homeland Sec.,
CIV.A. 06-3320 (MLC), 2006 WL 2385119 (D.N.J. Aug. 17, 2006). 2 But the opinion in
that case focused on the more strongly custodial nature of the specific detainer at issue,
noting that it called for the New Jersey Department of Corrections to detain the petitioner
long enough for ICE to take custody, rather than merely calling for the Department to
give ICE notice of death, release, or transfer. See id.; see also Amenuvor v. Mazurkiewicl,
457 F. App'x 92, 93 (3d Cir. 2012) (indicating that a petitioner can challenge a final order
of removal but not a mere detainer); Amenuvor v. Mazurkiewicz, 494 F. App'x 198, 200
(3d Cir. 2012) (agreeing that even where there was a final order of removal, a challenge
to eventual immigration custody long before the conclusion of petitioner’s state sentence
was not prudentially ripe), cert. denied, 133 S. Ct. 1313, 185 L. Ed. 2d 194 (2013), reh'g
denied, 133 S. Ct. 1859, 185 L. Ed. 2d 860 (2013). Here, Petitioner has not shown or
alleged that the detainer he seeks to challenge is any more custodial than suggested by the
The principal has also been held to cover habeas challenges to detainers lodged by one state during
service of a criminal sentence in another state. See Mokone v. Fenton, 710 F.2d 998, 1002 (3d Cir. 1983).
general description of detainers Judge Rice quoted from the Henry opinion. See Henry v.
Chertoff, 317 F. App'x 178, 179 n.1 (3d Cir. 2009).
Further, Alvarez is an unpublished 2006 opinion from the District of New Jersey.
The more recent and higher-authority precedent of Henry establishes the controlling law
this Court must follow, so Petitioner cannot challenge the ICE detainer that may affect
him when he completes his criminal sentence because he “failed to demonstrate that he
was being held pursuant to the detainer, that he was subject to a final order of removal, or
even that removal proceedings had been initiated,” and therefore was clearly not “in
custody” pursuant to the detainer when he filed his petitioner or at the present time.
Henry, 317 F. App'x at 179. See also Green v. Apker, 153 F. App’x 77, 79 (3d Cir. 2005).
For these reasons, Petitioner’s objections do not dissuade the Court from adopting
Judge Rice’s Report and Recommendation.
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