Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

QUEZADA-RUIZ v. NASH

June 14, 2005.

EDUARDO FRANCISCO QUEZADA-RUIZ, Petitioner,
v.
JOHN NASH, Respondent.



The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge

OPINION

Eduardo Francisco Quezada-Ruiz, an inmate confined at the Federal Correctional Institution at Fort Dix, New Jersey ("FCI Fort Dix"), filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241, see Quezada-Ruiz v. DeRosa, Civil No. 04-2081 (FLW), and a Complaint for damages and injunctive relief, see Quezada-Ruiz v. Nash, Civil No. 04-5646 (FLW).*fn1 In the habeas action, Petitioner challenges a detainer for possible removal lodged against him at FCI Fort Dix by the Department of Homeland Security (DHS), formerly the Immigration and Naturalization Service ("INS"). In the Complaint, Petitioner challenges the Bureau of Prison's ("BOP") determination that he is not eligible for placement in a community corrections center ("CCC"), see 18 U.S.C. § 3624(c), or early release pursuant to 18 U.S.C. § 3621(e)(2)(B) to complete the community stage of the residential drug abuse treatment program.*fn2 After careful consideration, the Court will dismiss both actions because the BOP cancelled the challenged detainer and properly determined that Petitioner is not eligible for placement in a CCC and early release.

  I. BACKGROUND

  Except as noted, the facts are not in dispute. Petitioner is currently serving a sentence imposed by Senior Judge Charles R. Butler, Jr., in the United States District Court for the Southern District of Alabama on April 12, 1996, amended October 16, 1996, after he was extradited from Colombia.*fn3 Based on his plea of guilty to one count of conspiracy to distribute and possess with intent to distribute cocaine, see 21 U.S.C. § 846, Judge Butler sentenced Petitioner to a 168-month term of imprisonment, followed by five years of supervised release. See United States v. Quezada-Ruiz, Docket No. 92-cr-0048 (CB-2) j. conviction (S.D. Ala. filed April 12, 1996). According to the docket, the judgment of conviction provides that, upon completion of the term of imprisonment, Petitioner is to be delivered to an immigration official for possible removal and, if he is not removed, he must participate in a program of testing and treatment for drug/alcohol abuse. The amended judgment provides that, "If not deported, within 72 house from custody of the BOP, the defendant shall report in person to the Probation Office in the district to which he is released." Id.

  On July 15, 2003, the DHS lodged a detainer against petitioner at FCI Fort Dix indicating that an investigation had been initiated to determine whether Petitioner was subject to removal from the United States ("removal detainer"). The removal detainer requests notice of Petitioner's release date, which the BOP projects as February 20, 2006. After challenging the detainer through the BOP's Administrative Remedy Program, Petitioner filed the Petition for Writ of Habeas Corpus, Civil No. 04-2081 (FLW). The Petition raises two grounds for relief: (1) the removal detainer violates the Extradition Agreement between the United States and Colombia, whereby Petitioner was extradited to the United States for criminal drug prosecution, and the rule of specialty, which prohibits the United States from proceeding against Petitioner for any nonextraditable act, including a removal proceeding, until he has had a reasonable time to return to Colombia; and (2) the failure of the DHS and BOP to recognize his non-deportable status and the BOP's determination that he is not eligible for placement in a community corrections center ("CCC") and early release violates the rule of specialty. Petitioner seeks a writ ordering the government to cancel the removal detainer and the "Deportable Alien" public safety factor, and to grant him early release and immediate placement in a CCC. The government filed an Answer to the Petition, accompanied by the declarations of Kisha Hebbon, Attorney Advisor for the BOP at FCI Fort Dix, and Susan G. Roy, Assistant Chief Counsel, DHS, Newark, New Jersey, with attached exhibits. Respondent contends that, by Notice of Action dated July 15, 2004, the DHS cancelled the removal detainer dated July 15, 2003, and replaced it with a detainer "for notification purposes only." (Decl. of Susan G. Roy, dated July 21, 2004, Form I-247.) The notification-only detainer provides:
Please accept this notice as a detainer. This is for notification purposes only and does not limit your discretion in any decision affecting the offender's classification, work and quarters assignments, or other treatment which he or she would otherwise receive.
(Id.)
  Although the notification-only detainer contains checkoff boxes to indicate the inmate's immigration status, none of the boxes is checked and the notification-only detainer does not provide any indication of Petitioner's immigration status. Nor does the notification-only detainer request notice of Petitioner's release date, although it contains a checkoff box for requesting 30 days advance notice of release. Susan Roy explains the significance of the notification-only detainer as follows:
The purpose of the notification detainer is to advise DHS/ICE when the petitioner is scheduled to be released from custody and returned to Colombia and/or Chile in accordance with the terms of the extradition treaty. DHS/ICE will have no further interest in the petitioner unless he does not leave the country in accordance with the terms of the extradition treaty, but instead manifests an intent to remain in the United States.
Should the petitioner manifest such an intent, he will be considered an intending immigrant, and in that situation, will be subject to removal proceedings. See Matter of Badalamenti, 19 I&N Dec. 623 (BIA 1988). (Roy Decl. ¶¶ 7-8.)
  Respondent asks this Court to dismiss the Petition. First, Respondent argues that Petitioner failed to exhaust the BOP's Administrative Remedy Program. Second, Respondent contends that, by cancelling the immigration detainer and replacing it with a notification-only detainer, the government complied with the Extradition Agreement and the rule of specialty. Third, Respondent maintains that Petitioner has no constitutionally protected liberty interest in early release or placement in a CCC, and that he is not eligible for early release because he does not satisfy the eligibility criteria for placement in a CCC. See 28 C.F.R. § 550.58(a)(1)(v); Program Statement 7310.04, ¶ 10 (Dec. 16, 1998).

  In his Reply to the Answer and in the Complaint docketed as Civil No. 04-5646 (FLW), Petitioner asserts that he exhausted the BOP's Administrative Remedy Program when he presented the issue to the Central Office on August 11, 2004. Petitioner challenges the BOP's determination that he is not eligible for placement in a CCC or early release pursuant to 18 U.S.C. § 3621(e)(2)(B), arguing that the Extradition Agreement and the rule of specialty, see 18 U.S.C. § 3192, allow him to remain in the United States until he has completed the five-year period of supervised release following his term of imprisonment and been given a reasonable period of time to leave the country. Petitioner maintains that, because he is not subject to removal until after completion of the five-year period of supervised release and a reasonable period of time to depart, he is eligible for CCC placement and early release and the BOP's refusal to place him in a CCC pursuant to 18 U.S.C. § 3621(e) was an abuse of discretion and violates the rule of specialty. II. DISCUSSION

  A. Jurisdiction

  Section 2241 of Title 28 of the United States Code provides in relevant part:
The writ of habeas corpus shall not extend to a prisoner unless — . . . He is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2241(c)(3).

  "Section 2241 is the only statute that confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." Coady v. Vaughn, 251 F.3d 480, 485-486 (3d Cir. 2001). A petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the district where the prisoner is confined provides a remedy "where petitioner challenges the effects of events `subsequent' to his sentence." Gomori v. Arnold, 533 F.2d 871, 874 (3d Cir. 1976).

  This Court has subject matter jurisdiction under § 2241 to consider Petitioner's challenge to the denial of CCC placement and early release because Petitioner seeks not to vacate or correct his sentence, but to challenge the execution of the sentence by the BOP. See Barden v. Keohane, 921 F.2d 476, 478-79 (3d Cir. 1991); 2 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 41.2b (3rd ed. 1998). Moreover, if the BOP incorrectly determined his eligibility for CCC placement and early release, this error carries a potential for a miscarriage of justice that can be corrected through habeas corpus. Murray v. Carrier, 477 U.S. 478, 495 (1986); Barden, 921 F.2d at 479. B. Exhaustion

  As a preliminary matter, Respondent maintains that the Petition is subject to dismissal because Petitioner failed to appeal the denial of his administrative remedy by the Regional Director to the General Counsel's Office. Specifically, Kisha Hebbon avers that the computerized index of administrative appeals indicates that Petitioner has not filed an administrative remedy with the Cental Office. Petitioner counters that dismissal on nonexhaustion grounds is not appropriate because he appealed to the General Counsel on August 11, 2004; the detainer at issue is the seventh detainer lodged by immigration officials at various institutions since 1996 and he sought administrative relief each time a detainer was lodged; and exhaustion would in any event be futile. (Reply to Answer, Exhaustion of Administrative Remedies.) The government did not respond to Petitioner's assertion that he presented his claim to the General Counsel on August 11, 2004. Under these circumstances, this Court will not dismiss the Petition for failure to exhaust administrative remedies.

  C. Standard of Review

  Petitioner does not dispute that BOP's regulations exclude from consideration for early release inmates "who are not eligible for participation in a community-based program as determined by the Warden on the basis of his or her professional discretion." 28 C.F.R. § 550.58(a)(1)(v). Nor does he dispute that inmates "who are assigned a `Deportable Alien' Public Safety Factor . . . shall not ordinarily participate in CCC programs" under Program Statement 7310.04, ¶ 10.b. In essence, the question presented is whether the BOP's determination that Petitioner is not eligible for CCC placement and early release under 18 U.S.C. § 3621(e)(2)(B) and 28 C.F.R. § 550.58(a)(1)(v) violates the rule of specialty and is ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.