Forbes v. United States of America

Filing 11

MEMORANDUM (Order to follow as separate docket entry) re 1 Petition for Writ of Habeas Corpus. Signed by Honorable Malachy E Mannion on 11/18/21. (dw)

Case 3:20-cv-00822-MEM-DB Document 11 Filed 11/18/21 Page 1 of 4

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
DENNIS A. FORBES

:

Petitioner

: CIVIL ACTION NO. 3:20-0822

v.

:

UNITED STATES OF AMERICA,
Respondent

(JUDGE MANNION)

:
:

MEMORANDUM
Petitioner, Dennis A. Forbes, an inmate formerly confined in the
Schuylkill Federal Correctional Institution, Minersville, Pennsylvania 1, filed
the instant petition for writ of habeas corpus pursuant to 28 U.S.C.
§2241. (Doc. 1).
Forbes challenges a 1999 removal detainer lodged against him as a
result of a conviction and sentence imposed in Rochester, New York for First
Degree Reckless Endangerment. (Doc. 1). Petitioner claims that “at the time
the conviction was not a deportable offense.” Id.
Petitioner is currently serving a 2002 federal sentence of 360 months,
imposed by the United States District Court for the Western District of New
Petitioner is currently housed in the Big Sandy United States
Penitentiary, Inez, Kentucky. See https://www.bop.gov/inmateloc/.
1

Case 3:20-cv-00822-MEM-DB Document 11 Filed 11/18/21 Page 2 of 4

York for Conspiracy to Distribute and Possession with Intent to Deliver
Marijuana and 50 grams of Cocaine Base, Use of a Minor to Distribute
Marijuana and Cocaine Base, and Unlawful Possession of a Firearm by
a Convicted Felon. (Doc. 10). His projected good conduct release date is
June 25, 2025. Id. For relief, Petitioner requests this Court “declare the
deportation hearing null and void, remove the INS detainer and the return of
property.” For the reasons outlined below, the Court will dismiss the petition
for lack of jurisdiction.

I. Discussion
Federal jurisdiction for a petition for a writ of habeas corpus requires
that a person be “in custody” at the time the petition is filed. 28 U.S.C.
§2241(c); see also Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Chong v.
District Director, INS, 264 F.3d 378, 383 (3d Cir. 2001). “According to most
courts which have considered the custody question, a prisoner who is
serving a criminal sentence is not in ICE custody simply because ICE has
lodged a detainer against him with the prison where he is incarcerated.”
Adams v. Apker, 148 Fed. Appx. 93, 95, 2005 WL 2082919, *2 (3d Cir. 2005);
Green v. Apker, 153 F. App’x 77, 79 (3d Cir. 2005) (nonprecedential)
(Petitioners may only obtain habeas corpus relief pertaining to ICE detainers
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if they are in custody pursuant to those detainers). The United States Court
of Appeals has held in several nonprecedential opinions that detainees are
not in custody pursuant to ICE detainers when they are still serving separate
criminal sentences in state or federal prison. See id.; Korac v. Warden
Fairton FCI, 814 F. App’x 722, 723 (3d Cir. 2020); Mundo-Violante v. Warden
Loretto FCI, 654 F. App’x 49, 51 (3d Cir. 2016); James v. Dist. Att’y York
Cty., 594 F. App’x 66, 66 (3d Cir. 2015). Thus, this Court lacks jurisdiction to
consider Forbes’ petition because he is not in custody pursuant to his ICE
detainer.
Moreover, Congress removed jurisdiction from the federal district
courts to consider claims challenging final orders of removal. 8 U.S.C. §1252;
Francois v. Gonzales, 448 F.3d 645, 647 (3d Cir. 2006). Congress “made
petitions for review filed with the courts of appeals ‘the sole and exclusive
means for judicial review of’ most orders of removal . . . .” Jordan v. Attorney
General of the United States, 424 F.3d 320, 326 (3d Cir. 2005). To the extent
that Forbes seeks to challenge the relief and process that was available to
him in the administrative proceedings that resulted in his removal order, such
is a challenge to validity of the removal order itself and Forbes is required to
bring this challenge to the U.S. Court of Appeals having jurisdiction over his
removal order through a Section 1252 petition for review.
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Finally, to the extent that Petitioner’s prayer for relief contains a request
for the return of property, such a claim is not cognizable in a §2241 action.
See Leamer v. Fauver, 288 F.3d 532, 542 (3d Cir. 2002). Thus, this claim is
dismissed without prejudice to Forbes bringing his claim in a civil rights action
pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), after exhausting his administrative remedies
as required by 42 U.S.C. §1997e(a). See Jones v. Bock, 549 U.S. 199
(2007).

V. Conclusion
For the reasons set forth above, the petition for writ of habeas corpus
pursuant to 28 U.S.C. §2254 will be dismissed without prejudice for lack of
jurisdiction and the case will be closed.
A separate Order will be issued.

s/ Malachy E. Mannion

MALACHY E. MANNION
United States District Judge
DATE: November 18, 2021
20-0822-03

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