United States District Court, N.D. Florida, Pensacola Division
SECOND REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE
proceeding pro se, initiated this case on June 14, 2019, by
submitting a petition for writ of habeas corpus, ECF No. 1,
and a motion requesting leave to proceed in forma pauperis,
ECF No. 2. Because Petitioner's motion and financial
affidavit revealed that Petitioner had sufficient funds to
pay the filing fee for this case, a Report and Recommendation
was entered recommending that Petitioner be required to pay
the $5.00 filing fee. ECF No. 4. That recommendation was
adopted and Petitioner was required to pay the fee. ECF No.
5. He has now done so, ECF No. 6, and the petition, ECF No.
1, has been reviewed.
is confined at the Okaloosa County Jail. ECF No. 1 at 1. He
brings this case against the Department of Homeland Security,
and I.C.E., or as it was previously known, Immigration and
Naturalization Services (the “INS”). Id.
Petitioner alleges that by virtue of his marriage, he became
a United States citizen. Id. at 3. The petition does
not allege that a final order of removal has been entered,
id., and it appears that the only relief requested
in this case is to have an immigration hold removed so that
Petitioner can post bond on his pending charges. Id.
instant petition was filed pursuant to 28 U.S.C. §
2241(c). However, a petitioner can only “use a §
2241 petition to challenge custody alleged to be in violation
of the Constitution or laws of the United States.”
Louis v. Sec'y, Fla. Dep't of Corr., 524
Fed.Appx. 583, 584 (11th Cir. 2013) (citing 28 U.S.C. §
2241(c)(3)). That statute directs that a writ of habeas
corpus cannot extend to a prisoner unless he “is in
custody under or by color of the authority of the United
States . . . .” 28 U.S.C. § 2241(c).
“[A]bsent custody by the authority against whom relief
is sought, jurisdiction will not lie to grant the
writ.” Gonzales-Corrales v. I.C.E., 522
Fed.Appx. 619, 623 (11th Cir. 2013) (citing Orozco v.
U.S.I.N.S., 911 F.2d 539, 541 (11th Cir. 1990)). The
Eleventh Circuit has held that “[t]he filing of the
detainer, standing alone, did not cause [petitioner]
to come within the custody of the INS.” Orozco v.
U.S.I.N.S., 911 F.2d 539, 541 (11th Cir. 1990); see
also Roberts v. INS, 372 Fed.Appx. 921, 924 (11th Cir.
2010); Louis, 524 Fed.Appx. at 584 (stating that
“[a]n ICE detainer, standing alone, is generally
insufficient to establish ICE custody.”). Here,
Petitioner is held in state custody and is facing state
criminal charges. Petitioner has alleged only that a detainer
has been issued by I.C.E. Thus, Petitioner is not in federal
custody and the petition must be dismissed for lack of
respectfully RECOMMENDED that the petition
for a writ of habeas corpus, ECF No. 1, filed pursuant to 28
U.S.C. § 2241, be DISMISSED for lack of
TO THE PARTIES
fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file
specific written objections to these proposed findings and
recommendations. Fed.R.Civ.P. 72(b)(2). A copy of the
objections shall be served upon all other parties. A party
may respond to another party's objections within fourteen
(14) days after being served with a copy thereof.
Fed.R.Civ.P. 72(b)(2). Any different deadline that may
appear on the electronic docket is for the Court's
internal use only and does not control. If a party fails
to object to the Magistrate Judge's findings or
recommendations as to any particular claim or issue contained
in this Report and Recommendation, that party waives the
right to challenge on appeal the District Court's order
based on the unobjected-to factual and legal conclusions.
See 11th Cir. Rule 3-1; 28 U.S.C. §
 “An immigration detainer
‘serves to advise another law enforcement agency that
the Department [of Homeland Security (‘DHS') ]
seeks custody of an alien presently in the custody of that
agency, for the purpose of arresting and removing the
alien' and ‘is a request that such agency advise
the [DHS], prior to release of the alien, in order for the
[DHS] to arrange to assume custody, in situations when
gaining immediate physical custody is either impracticable or
impossible.'” 8 C.F.R. ...