Richard v. Immigration and Naturalization Service et al

Filing 19

ORDER RULING ON REPORT AND RECOMMENDATIONS incorporating 12 Report and Recommendations, dismissing action without prejudice and without issuance and service of process. Signed by Honorable Joseph F Anderson, Jr on 11/22/2011. (jpet, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Naarl Richard,
Petitioner,
v.
Immigration and Naturalization Services;
J. Al Cannon, Jr.,
Respondent.
____________________________________

)
)
)
)
)
)
)
)
)
)

C/A No. 0:11-1508-JFA-PJG

ORDER

Petitioner, Naarl Richard, a federal prisoner proceeding without assistance of counsel,
seeks habeas corpus relief under 28 U.S.C.§ 2241. Specifically, petitioner challenges a
detainer lodged against him by the Immigration Customs Enforcement (ICE). This is the
petitioner’s third attempt to challenge, via a separate civil action, his detention relating to
pending federal criminal charges for possession with intent to distribute heroin. He contends
in this action that he is not able to make bond in his pending criminal case because of the
detainer lodged by ICE.
The Magistrate Judge assigned to this action 1 has prepared a thorough Report and
Recommendation and opines that this action should be summarily dismissed because the
petitioner is not “in custody” for purposes of § 2241. The Report sets forth in detail the
relevant facts and standards of law on this matter, and the court incorporates such without

1

The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. The Magistrate Judge makes only a recommendation to this court. The recommendation has
no presumptive weight, and the responsibility to make a final determination remains with the court. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).

1

a recitation and without a hearing.
The petitioner was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on October 3, 2011. The petitioner has
filed a document entitled “Report and Recommendation” which the court will construe as an
objections memorandum. For the reasons which follow, the court agrees with the Magistrate
Judge and summarily dismisses the petition.
The Magistrate Judge’s Report and Recommendation points out that in order for a
prisoner to challenge a detention via a federal habeas petition, the petitioner must be “in
custody” after the challenged conviction, sentence, or other restriction on liberty as defined
by the habeas statute. 28 U.S.C. § 2241(c)(3). Moreover, custody must exist at the time of
the filing of the petition.
The Magistrate Judge points out that although the Fourth Circuit Court of Appeals has
not addressed the issue, other circuits which have considered the precise issue presented here
have determined that the lodging of a detainer does not render a petitioner “in custody” for
purposes of § 2241. Accordingly, the Magistrate Judge recommends that the petition should
be dismissed.
The petitioner’s objection memorandum consists of little more than a reassertion of
the underlying claim made in this case. Specifically, petitioner contends that “no bondsman
service wants to take my bond because of the alleged I.N.S. detainer.” This, of course, is not
a proper objection to the Magistrate Judge’s determination that the petitioner is not in
custody. Moreover, the objection memorandum admits, with commendable candor, that
“circuits has [sic] held that the filing of a detainer, alone, does not create custody in the I.N.S.

2

and a majority of district courts within the circuit have followed that authority.” (Citing
Roney v. INS, 462 F.Supp. 2d 285, 290 (D.Conn. 2006).

Finally, petitioner cites

humanitarian reasons why he should be released on bond.

He points out that his

grandmother, aunt, and uncle perished in the Haiti earthquake of 2010. Once again, this is
not a proper objection to the Report.
For the foregoing reasons, all objections are overruled and the Report and
Recommendation of the Magistrate Judge is incorporated herein by reference. This action
is hereby dismissed without prejudice and without issuance and service of process.
IT IS SO ORDERED.

November 22, 2011
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

3