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Gardner v. Secretary

United States District Court, N.D. Florida, Gainesville Division

May 22, 2018

SAMUEL GARDNER, Petitioner,
v.
SECRETARY, FLORIDA DEP'T OF CORRECTIONS, Respondent.

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court on ECF No. 6, Petitioner's pro se Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Respondent has filed a response and appendix with relevant portions of the administrative record, arguing that the Amended Petition (“Petition”) should be dismissed because it is time-barred and unexhausted, and nevertheless without merit. (ECF No. 11.) Petitioner has filed a reply, (ECF No. 12), and the Petition is therefore ripe for review. Upon due consideration of the Petition, the response, the administrative record, and the reply the undersigned recommends that the Petition should be denied.

         I. Background

         Petitioner is a Jamaican citizen and state prisoner in the custody of the Florida Department of Corrections (“FDOC”). (ECF No. 11 at 29.) He was convicted on August 20, 1987, of sexual battery on a child under twelve by a defendant eighteen years of age or older and sentenced to life imprisonment. (Id. at 18, 20.) The state trial court retained jurisdiction over Defendant for review of any Parole Commission release order for a period of twenty-five years. (Id. at 20.)

         On August 20, 1998, United States Immigration and Customs Enforcement (“ICE”) filed a detainer with the FDOC. (Id. at 12, 28-29.) At a subsequent ICE hearing on February 10, 1999, Petitioner was ordered removed upon completion of his FDOC sentence. (Id. at 33.)

         The Florida Parole Commission (“FPC”) interviewed Petitioner on November 19, 2009. (Id. at 24.) The FPC determined that Petitioner's earliest possible release date (his Presumptive Parole Release Date) is May 2047. (Id. at 12, 24; ECF No. 12 at 74.)

         Petitioner thereafter filed the instant Petition in this Court challenging the fact that he has not yet been removed to Jamaica. (ECF No. 6.)

         II. Discussion

         Petitioner raises the following six grounds for relief in his Petition: (1) Respondent has failed to turn Petitioner over to ICE to be removed to Jamaica; (2) the FPC failed to comply with the order of removal; (3) Petitioner is serving an unconstitutional sentence because he signed all requisite release papers but has not yet been removed; (4) Petitioner has been unlawfully detained in violation of the sentencing judge's order for Petitioner to be removed after Petitioner served the twenty-five year minimum mandatory sentence; (5) the FPC's setting of a 2047 release date violates the removal order; and (6) Petitioner has been deprived of his right to liberty because he is essentially serving an indefinite sentence where he will never be removed. Petitioner's claims all relate to one claim-that his continued incarceration by the FDOC violates the removal order and is therefore unconstitutional.

         Respondent argues that the Petition should be dismissed because Petitioner failed to exhaust his state remedies and the Petition is untimely. Alternatively, Respondent argues that the Petition should be denied because it is without merit.

         Section 2241 vests federal district courts with jurisdiction to grant a writ of habeas corpus to persons in custody in violation of the Constitution, laws, or treaties of the United States. § 2241(c)(3). A petition by a state prisoner in custody pursuant to the judgment of a State court, however, is typically governed by 28 U.S.C. § 2254. See § 2254(a); Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003). Nevertheless, the ICE detainer coupled with the existence of a removal order in this case renders Petitioner in the custody of ICE for purposes of § 2241(c), despite the fact that he is not in ICE's physical custody. See Martell v. Sec'y, Dep't of Corr., No. 8:12-cv-604-T-33MAP, 2012 WL 1016821, at *1-2 (M.D. Fla. Mar. 26, 2012); Galiana v. I.C.E., 5:11cv255/MMP/EMT, 2012 WL 425910, at *1-2 (N.D. Fla. Jan. 11, 2012). This Court therefore has jurisdiction to review Petitioner's claims under § 2241.[1]

         “Federal habeas relief is available to state prisoners only after they have exhausted their claims in state court.” O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). Similarly, applications by a person in state custody pursuant to the judgment of a state court are subject to a one-year statute of limitations, which runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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