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Perez v. Immigration & Naturalization Services

United States District Court, D. New Jersey

February 9, 2018

JORGE HUMBERTO FELIPE PEREZ, Petitioner,
v.
IMMIGRATION & NATURALIZATION SERVICES, DEPARTMENT OF HOMELAND SECURITY, Respondents.

          Jorge Humberto Felipe Perez, Petitioner Pro se.

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Petitioner Jorge Humberto Felipe Perez, a prisoner presently incarcerated at Southern State Correctional Facility in Delmont, New Jersey, brings this action pursuant to 28 U.S.C. § 2241 to challenge his immigration hold/detainer. ECF No. 1. For the reasons that follow, the Petition will be dismissed without prejudice.

         BACKGROUND

         Petitioner filed the Petition on January 9, 2018, and paid the requisite $5.00 filing fee on January 12, 2018. ECF No. 1. In the Petition, Petitioner explains that he is presently serving a state sentence imposed by the Superior Court of New Jersey on October 13, 2017.[1] ECF No. 1, Pet. at 1. He also states that an immigration hold has been lodged against him. See id. The Petitioner seeks to challenge his immigration hold/detainer and invoke his “rights to a quick and speedy trial.” Id. at 2, 5, 6. The Petitioner seeks the following relief from the Court: “To take me into Federal Custody and proceed with any and all DHS Immigration cases.” Id. at 8.

         STANDARD OF REVIEW

         “Habeas corpus petitions must meet heightened pleading requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). Although the petitions of pro se litigants are held to less stringent standards than those pleadings drafted by lawyers, see Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010), the habeas petition must “specify all the grounds for relief available to the petitioner, “state the facts supporting each ground, ” “state the relief requested, ” be printed, typewritten, or legibly handwritten, and be signed under penalty of perjury. 28 U.S.C. § 2254, Rule 2(c) (applicable to § 2241 petitions pursuant to Rule 1(b)).

         Habeas Rule 4 requires a judge to sua sponte dismiss a habeas petition without ordering a responsive pleading “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” 28 U.S.C. § 2254, Rule 4 (applicable to § 2241 petitions through Rule 1(b)). See also 28 U.S.C. § 2243 (“A court . . . shall forthwith . . . issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant . . . is not entitled thereto.”). “[A] district court is authorized to dismiss a [habeas] petition summarily when it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Lonchar v. Thomas, 517 U.S. 314, 320 (1996). See McFarland, 512 U.S. at 856 (“Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.”).

         DISCUSSION

         The Petition must be summarily dismissed without prejudice because Petitioner has failed to allege the ”in custody” jurisdictional requirement of § 2241 habeas petitions. In order to obtain habeas jurisdiction, the Petitioner must allege that he is “in custody” pursuant to 28 U.S.C. § 2241(c)(3):

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). The district court only has subject-matter jurisdiction under § 2241(c)(3) if both the “in custody” and “in violation of the Constitution or laws or treaties of the United States” requirements are met. Maleng v. Cook, 490 U.S. 488, 490 (1989). ‚ÄúCustody is measured as of the time that ...


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