* The Honorable Patri ck J. Duggan, United St at es Dist ric t Ju dge f or the Eastern Distri ct of Michigan, sit ting by designation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0205P (6th C ir.) File Name: 04a02 05p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v

.

M ARCO G ARC IA

E CHA VER RIA , Defenda nt-Appel

lant. X - - - -

> , - - - - N No. 03-3655

Appeal from the United States District Court for the Northern District of Ohio at Toledo. No. 01-00779—James G. Carr, District Judge.

Argued: April 23, 2004
Decided and Filed: July 1, 2004

Befor e: MERRITT and MO ORE, Circ uit Judges ; DUGGAN, District Judge. * 2 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

_________________ COUNSEL

AR GUED: Jeffrey

M. Gamso, GAMSO, HELMI CK & HOO LAH AN, Toledo, Ohio, for Appellant. Thomas O. Secor, ASSISTANT UNI TED STATES ATTORNEY, Toledo, Ohio, for Appellee. ON BRI EF: Jeffrey M. Gamso, GAMSO, HELMI CK & HOOLAHA N, Toledo, Ohio, for Appel la nt. Thomas O. Secor, ASSISTANT UNI TED STATES ATTORNEY, Toledo, Ohio, for Appellee.

_________________ OPINION

_________________ KAREN NELSO

N MOORE, Ci

rcuit Judg e. Defe

ndantAppellan t, Marco Garcia-Echaver

ria (“Garcia-Echave

rria”), appeals his conviction p ur suant to a conditional guilty plea for “Unlawf ul Reentr y by an I llegal

Alien,” i n violati on of 8 U.S.C. § 1326(b). On appeal, Garcia-Echave rria argues that his conviction for unlawful reentry should be vacated

because (1) his initial removal was unlawful, because at the time he

was removed, the Kentucky drugconviction for

which he was removed was on direct

appeal; (2) his initial removal violated due process

because at the time he was removed, his petition for review of the Board of Immig ration Appeals (“BI

A”) decisionand his motion for a stay of r emoval were pending before the United States C ourt of Ap peals for the Fif

th Circuit, he had

filed a petition for a

writ of ha

beas cor pus in the United States District Courtfor the Southern District of NewYork

(“S.D.N.Y.”), which theS.D.N.Y. had transferred to the United States District Court for the Western District of Louisiana ( “W.D. L a.”), and the S.D.N.Y. had issued a stay of removal until the W.D. La. t ook further action; and (3) his indictmentshould have been dismissed d ue to violations of § 3161(b) of t he Speedy Trial Act and Fe deral Rule of Criminal Procedure 5(a) because by the time he was indicted,No. 03-3655 United Sta tes v. Ga rcia-Ec haverria 3

he had bee

n in deten tion for th irty-three day s, and by

the time he was first brought before a magistra te, he ha d been in detention for thir

ty- five day

s.

For the follow

ing rea sons, we A FFIRM GarciaEchaverria’s conviction.

I. BACKGROUND

Inthis appe al, Garc ia-Echa verria challenges his conviction for unlawful reentry . On October 3, 2001, a grand jur y returned a one-cou nt indictme

nt, char ging G arcia- Echave

rria with being an alien found in the United States on or about August 31, 2001, after having been deported f or committing

an“aggravated f

elony” and w

ithout obtaining pe rmiss ion to reenter from the A

ttorney Genera l, in violat

ion of 8 U. S.C. § 1326(b). After hi s motions to dismiss the indictment were de nied, Garcia-Echaverria plea ded guilty to the c

har ge o f unlawful reentry , and the district cour t sen tenced h

im to thirty -seven months of imp

risonmen t.

Several of Garcia-Echaverria ’s arguments on appeal attack the legality of

his prior removal. Garcia-Echaverr ia, a native and citizen of Mexico, entered the United States onor about January 1, 1980, and became a lawful permanent resident on
or about Januar

y 26, 199 0. On January 6, 1997, Garc iaEchaverria was convicted by the State of Kentucky pursua

nt to a guilty plea , entered on December 16, 1996, to the ch arge of “Trafficking Marijuana ove r 8 ounces, less than

5 pounds,” inviolation of K .R .S. 218A.1421(3). Joint Appendix (“J.A.”) at 125-26. On January 10, 1997, the Kentucky Circuit Court sentenced Garcia-Echaverria to f

ive years of imprisonment for his Kentucky drug

conviction. Severa l mon ths later, on May 7, 1997, Garcia-Echaverria f iled a motion in the Kentucky Circuit Court, requesting taped copies of the court proceeding

l eadi ng up to his Kentucky drug conviction, and indicating that the tapes would be used to seek post-judgment relief. Then, on July 16, 1997, Garcia- Echav erria wrote a pro-se letter to the Kentucky Circ

uit Court, indicating that he 4 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

1 This motion does not appear in the Joint Appendix. wanted t o appeal his conviction, or in the alternative, requestingshock probation. The Joint Ap pendix ref

lects that

onMarch 29, 20 00 , the Kentucky Circ uit Court entered an order ove rruling Gar cia-Echaverria’s “motion fo r appointment

of counsel, motion for hearing and motion to set asid e sentence.” 1 J.A. at 168. Subsequently, GarciaEchave rria filed a motion to reconsider the March 29, 2000 order, which wa s captioned as a “‘BEL ATED APPEA

L RCr 1 1.42 MOTI ON TO VACATE, SE[T] ASI DE, CORRECT SENTENCE

OR SE T FO R NE W T RIAL A ND A PP EAL’ ‘APPOINTMENT

COUNSEL AND MOTI ON FO R HEARING.’”

J.A. at 153. On April

18, 2000, the Kentucky Circuit Court overruled this motion to reconsider.

OnMay 30, 2000, Gar

cia-Echaverria filed a N o tice of Appeal in the Kentucky Circui t Court, indicating that he sought to appeal the March 29 , 2000 and April 18, 2000 orders. The Kent

u cky Court of A

ppeals’ s docket sheet als o
re flect s that the appeal related to the March 29, 2000 and Ap ril 18, 2000 orders. The “General Case I nformation ” sectionof the docket sheet, h oweve r, indicates that the document type i s a “Mat ter of Right Appeal,” and that the

casetyp e is a “Direct appeal - Criminal.” J.A. at 114. On February 14, 2001, after Garcia-Echave rria had been removed, the Kentucky Court of A ppeals dismissed the appeal upon its own motion. OnAugust 14, 2002, the Clerk of th e Court of Appeals for Kentucky wrote a letter to t

h e U.S. Attorney’s

Office, expressing the opinion that the appeal docketed on May 30, 2000, “is a dire ct appea l fr om two judgmen ts denying

relief in a collateral attack on a judgment of c onviction . . . not a direct appeal from a judgmen t o f conviction.” J.A. at 165.

OnMay 13, 1997, t

he I mmigr ation and Naturalization Service (“ IN S”) issued Garcia-Echaverria a Notice to Appear, charging that he was de por table due to his Kentucky dr ugNo. 03-3655 United Sta tes v. Ga rcia-Ec haverria 5

2 According to the S .D.N .Y.’s order transferr ing G arcia-E chav erria’s habeas petition and g rantin g a sta y of remova l, the S.D.N.Y .’s pro-se off ice recei ved t he pet it ion onJul y 12, 2000. convictionunder two sectio ns of the Immigration and National ity

Act (“INA” ) — § 237(a)(2)(A)(i ii) (c odified as 8 U.S.C. § 1227(a)( 2)(A) (iii)) for being convicted of an “aggravated

felony ” and § 23 7(a)(2 )(B)( i) (codif ied as 8 U.S.C. § 1227(a)(2)(B)(i)) for being convicted of controlled substance offense. On September 7, 1999, an Imm igration Judge (“ IJ”) ordered Garcia-Echave rria removed from the United States. On July

20, 2000, the BIA dismissed Garc iaEchaverria’s appeal, finding that a waiver of inadmissib lity pursuant to § 212(c ) of the I

NA (orig inally codifie d as 8 U.S. C. § 11 82(c), b

ut repealed by

the Illegal I

mmigration Reform and Immigra

nt R esponsibility Act (“I IRI RA”), 104 Pub

. L. No. 104-208, § 304(b), 110 Stat. 3009 (1996 )), wa s notavailable to him, and that he was statutorily ineligible f or cancellation

of removal pursuant to § 240A(a) of the I NA (codified at 8 U.S.C. § 1229b).

Garcia- Echave rria

was removed on either August 8 or 9, 2000, after he had made filin gs in the Fifth Circuit and the S.D.N.Y. OnAugust

7, 2000, Garcia-Echaverria f iled in the Fi fth Circuit a petition f or revie w of the B IA’ s decis ion an d

a motion for a stay of re moval, w hi ch were docketed on August 10, 2000. After

Garcia-Echaverria was removed, the Fifth Circuit declared moot the motion to stay re mo val and dismissedfor lack of jurisdiction the petition for review. While he was held in Oakda le, Louis iana aw aiting r emoval, Garcia-Echav erria

sent a petition for

a writ of habeas corpus t o the S.D.N.Y. 2 On August 8, 2000, the S.D.N.Y. ordered the habe as petition to be filed and docketed, transferred the petition to the W.D. La., and stayed r emoval pending further actionby the W.D. L a. However, neither Garcia-Ec haverria’s habeas petition nor the S.D.N.Y.’s orders tra ns ferring the petition and

granting thestay were

entered on the S.D.N.Y.’s doc ket s heet until August 9, 2000. The W.D. La. did not 6 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

receive the transferred habeas petition until August 14, 2000, and dismissed the petition for non-payment of f iling fees on November 1, 2000.

Garcia-Echaver

ria was found in the United States on August 31, 2001, wh en he was stopped for speeding by officers of the Oh

io Hig hw ay P atrol at Fremont, Ohio. Officers of the Highway

Patrol notified the INS, and Garcia

Echave rria was plac ed in

Sandusky

County jail pursuant to an INS det ain er. On S ept emb er 4 , 20 01, IN S offi cer Matthew Hamulak interviewed Garcia-Echave rria after administering Miranda warning s. During this inter view, Ga rcia-E chaver

ria admitted that he ha d previou sly

been removed and that

he had reentered without obtaining permission from the Attorney Genera l. Garcia-Echaverria a

lso consent ed t o having

his finger prints taken at that

tim e. On September 6, 2001, Hamul ak requested from INS hea dquarters the records pertainingto G arcia-Echaverria’s pr ior removal, which he receive d on September 22, 2001. On September 14, 2001

, INS officer Neal Baker se nt Garcia-Echaverria an “ INS DETAINEE

RESPONSE SHEET,” inf ormi ng GarciaEchave rria that he would no t rec eive an I J hearing , that his prior order of deportation had been reinstated, a nd that he was “awaitingprosecution for Re-Entry after Depor

tat ion. No further contact will be made with y ou by the Detention & Deportation Office until that is resolved.” J.A. at 89.

The districtcourt had jurisdiction over Garcia-Echaverria’ s criminal prosecution pursuant to 18 U.S.C. § 3 231 beca use Garcia-Echav erria

was indicted for an offense ag ainst the laws of the United Sta

tes. Thiscourt has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.No. 03-3655 United Sta tes v. Ga rcia-Ec haverria 7

II. ANALY SIS

A. Standard of Review

This court reviews de novo the denial of a motio n to dismiss an indictment and a collateral attack upon a prior removal order underly

ing a convi ctio n f

or un la wf ul re en tr y. United States v. Martinez-Rocha , 337 F.3d 566, 568-69 (6th Cir. 2003) (discussingthe standard of review for a collateral chall enge under

8 U.S.C. § 1326(d)). This court also reviews de novo the d

istrict c ourt’s a

pplication of th e Speedy Trial Act and of the Federal Rules of Criminal Procedure. United States v. Burk

e , 345 F.3d 416, 421 (6th Cir. 2003), cert. denied

, 124 S. Ct. 1731 (2004); United States v. Salgado

, 250 F.3d 438, 453 (6th Cir.), cert. denied, 534 U.S. 916 (2001).
B. Finality of Kentucky Drug Conviction
First, Garcia-Echaverri a a rgues that his conviction for unlawful reentr

y should be vacated because he

was removed whi l e his Kentuc

ky d rug conviction was on dire ct appea l. Garcia-Echav erria

as serts that the Kentucky Court of Appeals’s docket sheet ref lects tha t a direct appeal was pendingat the time he was removed, and that the district court improper ly looked behind these judicial records to determine the finality of his conviction.

To support an order of depo rtation , a conviction must be final. Pino v. Landon , 349 U.S. 9 01 (1955) . Finalit y requires the defendant to have exhausted or waived his rights to direct appeal. Aguilera-Enriquez v. INS , 516 F.2d 565, 570- 71 (6th Cir. 1975), cert. denied, 423 U .S. 1050 (1976). The defendant’s exercise of post-conviction remedi es does not, howev er, undermine the finality of his c onviction. Id

. Th e finality of a defendant’s conviction must be determined from court records. Id . at 570.
Contrary to Gar c ia-Echaverria’s assertions, AguileraEnriquez does not r

estrict c ourts to anexamination of docket 8 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

3 “RCr12.0 4 wa s ame nde d effec tive Jan uary 1 , 199 9, t o all ow 30 days for taking an ap pea l.” Comm onwealth v. Op ell , 3 S.W .747 , 750 n.2 (Ky. Ct. App. 1999).

4 That Ga rcia-E chav erria m ay have requ ested a bela te d ap pea l in these motions does not aff ect the finality

of his convict ion. sheetswhen determining the finality of a conviction. Rather Aguilera-Enriquez

provides

, “The Immigra tion authorities must look to judi cial rec ords to de termine w

hether a perso n has been ‘convicted’ of a crime. They may not determine on their own an alien’ s gui lt or innocence.” Id

. AguileraE nriquez prohibits immigration authorities from second guessi ng, in the context of d eportation proceedings, the ascertainment

of an alien’s guilt, but it does not prohibi t the districtcourt from questioning, when determining finality , the design ationgiven to a particular action on a state cour t ’ s docket sheet.

Inthis case, the district court did not contravene the limitations im po se d b y Aguilera-Enriquez b y examining various re co rd s f

ro m t he Ke nt uc ky C ircu it Court and the Kentucky Courtof Appeals. The district court determined the finality of Garcia-Echaverria ’s conviction from court records and did not second gue s s the Kentucky Circuit Court’s ascertainment

of guilt. According to Kentucky Rule of Criminal Procedu

re (“RCr ”) 11.42 , a motio n to vacate, set aside, or corr

ect sent ence is a collateral attack and need normally to be filed within three years of final judgment. At th e time Garcia-Echaverria was convicted, a direct appeal froma criminal conviction was required to have been filed within ten day s of fina l judgme nt. Commonwealth v. Op ell

, 3 S.W.3d 747, 750 (Ky. Ct. App. 199 9) (citing old RCr 12.04). 3 The Kent

ucky Circuit Court’s March 29, 2000 order indicates that Garcia-Echaverria’ s initial motion was to set aside his sentence, the Ke n tucky Circuit Court’s April 18, 2000 order dis poses of a motion to reconsider that initial motion and cite s to RCr

11.42, 4 and Gar

cia-Echaverr

ia’s timeNo. 03-3655 United Sta tes v. Ga rcia-Ec haverria 9

for filing a direct a ppeal ha d expired i

n1997. Therefore, the districtcourt did n ot err by determ inin g that the motions overruled on March 29, 2000 and April 18, 2 000 were collateral attacks

upon Gar

cia-Echaverr

ia’s c on viction. On May 30, 2000, Gar

cia-Echaverr

ia filed a Notice of Appeal in the Kentucky Circuit Court, specif ying tha t he soug

ht to appe al the March 29, 2000 and April 18, 2000 orders. Th e Notice of Appeal does not indicate that Garcia-E chaver ria sought to appea

l his judg

me nt o f conviction entered on January 6, 1997 or his sentence imposed on January 10, 1997. Ad di ti on al ly, the Kentu

cky Court of Appeals’s doc ket sheet indicates that the a

ppeal pe rtained to the March 29, 2000 and April 18, 2 000 orde

rs.

Garcia-Echav erria

bases his

entire a rgumen t that his Kentucky drugconviction was not final upon the fact that the “GeneralCase Information” section of the Kentucky Court of Appeals’s docket sheet ref ers to a “Matte

r of Righ t Appeal” and a “Direct appeal - Criminal.” Aguilera-Enriquez does not support Garcia-Echaverria’ s argument that a docket sheet notationreferring to a direct appe al requires the conclusion that his conviction was not

final for removal purposes. The Kentuc k y court records as a whole indicate that the appe al pendingw h en Garc ia-Echa verria was removed pert

ained to collateral attacks upon his conviction. Therefore, Garcia

Echave rria’s c onviction

was fina l for rem oval purp oses.

C. Due Process in Prior Re moval

Next, Garc ia- Echaverria argue s that his conviction for unlawful reentry

must be vacate d becau se he wa s remove d in violation of due pr

ocess, a s court pr

oceedin gs pert ainin g to his removal were pending and an order staying

his removal had been issued . In r esponse, the government arg ues that Garcia-Echav erria

receiv ed due pr

ocess, in that he received a proper hearing before an I J and an appeal to the BIA. The governm en tpoints out that the Antiterrorism and Effective Death Penalty Act of 1996 ( “AEDPA”) and the I llegal I mmig rationReform and Immigra nt Responsibility Act of 10 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

5 The IIRI RA adop t ed “the term “re mov al,’ which e ssentially elimi nated a distinction that f ormerly exist ed between ‘deportation’ proceedings and ‘exclusion p roceed ings.’ Thus, a determi nati on whether

an alien is ‘inadmissible’ (i. e., cannot, or did not, enter the country lawfull y), or ‘de por table’ (i.e., e ntered the co untry lawfu lly but is no longer entitled to st ay), wou ld be deter mined throug h ‘remo val’
pro ceed ings.” Balogun v. U. S. Att ’y Gen. , 304 F.3d 130 3, 13 06-0 7 (1 1th Cir. 2002) (citations omit ted). 1996 (“II RIRA”) strip courts of jurisdictionto review orders of deportation/removal 5 issued to aliens who have committed certain criminal offenses, and that the II RIRA stripped

courts of jurisdict ion over c laims ari s ing fro m decisions by the Attorney General to exec ut e removal orders. The gover nment also recognizes, ho wever, that the A EDPA and t

he I IRI RA did not strip courts of jurisdiction over habeas corpus petitions filed pursuant to 28 U.S.C. § 2241. The government argues that removing Garcia-Echave rria while his petition for review was pending before the

Fifth Cir cuit did not den

y hi m due process, as the Fifth Circuit would not have had jurisdiction over

that petition. The government also contends that r emoving Garcia-Echaver ria after the S.D.N.Y. had transferred

Garcia-Echaverria’ s § 2241 petition to the W.D. La. and issued a stay of removal did not deny hi m due process , because those orders had not been enter ed into the court’s docket at the time Garcia- Ech averria was removed, and therefore, were not y

et effective.

1. Petition for Review and M otion for a St ay Pending Before the U nited

Stat es Co urt o f A ppeals for the Fifth Cir cuit

The Fifth Cir

cuit’s do cket she et indica tes that G arcia

Echaverria’s petition f

or rev iew and motion for a stay of deportation

were dock eted on August 1 0, 2000. The Fifth Circuit’s docket sheet fur ther indic ates t

ha t on August 11, 2000, the Fifth Circuit declared moot Garcia -Echaverria’s motion for a stay ( as Garcia-Echaverria had been removed on August 8 or 9, 2000 ) and on Se

ptember 12, 2000, t

he FifthNo. 03-3655 United Sta tes v. Ga rcia-Ec haverria 11

6 Nothing in t

he Joi nt Appe ndix i ndica tes the b asis for the Fifth Circu it’s dis miss al f

or la ck of

juri sdic ti on of G arcia-E chav erria’s peti ti on forreview . W e have obta ine d the re levant o rder from th e Fifth C ircuit clerk’s of

fice, but the order does not state t he court’s reasoni ng. Circuit granted the Attorney

General’s motion to dismiss for lack of jurisdiction Garcia-Echaverr ia’s petition for review.

Alth ough we do not have t he bene fit of the

Fifth Circuit’s analy sis, 6 we conclude t

hat Garcia -Echaverria’s removal afte r he had filed a petition for review but before the c ourt ruled on that petition did not deprive Garcia-Echaverria of due proces s. Under th e pe rma nen t p rov is io ns o f th e IIRIR A, se rving a petition for

review on an officer or employ ee of the INS does notgive ri se to an a

utomatic stay

of remov al, alt

hough t he court may issue a sta

y. 8 U.S.C. § 1252(b)( 3)(B); see also Bejjaniv. INS

, 271 F.3d 670, 688-89 ( 6th Cir. 2001). Moreover, under the permanent provisions of the II RIRA, an al ien’s removal

while his p etition for revie w is pendin

g neither deprives the court of appeals of jurisdiction over that petition nor

does it necessarily

render moot the claims in that petition. Bejjani , 271 F.3d at 688-89 ; see also Amanfi v. Ashcroft, 328 F.3d 719, 725 n.1 (3d Cir. 2003).

Inthis case, G a rcia-E chaver ria was n

ot remove d in violation of an ef

fective stay of remov al is su ed by the Fift h Circuit, as G arcia -Echaverria’s petition for review did not gi ve ri se to an automatic stay a nd the Fifth Circuit’s docket sheet reflects that

Garcia-Echaverria was removed before the court ruled upon his motion for astay. It is true that GarciaEchaverria’s removal made it more difficult for him to pursue his petition for

review before the Fifth Circuit; we have relied upon this fact when

issuing stays of deporta

tion/removal for aliens with petitions for review pending before this circui t

. Bejjani
, 2 71 F.3d at 688-89. However, Garcia-Echa verria’s removal did not mak

e it im possiblefor him to p

ursue his petition for review, for his removal did not deprive the Fift

h 12 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

7 Secti on 440(a) of t

he AEDPA provide d: “ Any f inal or der of deport ati on agains t an al ien who i s deportable by reason of having committe d a cri minal

off ense cover ed i n section 241(a)(2)(A)(iii) , (B), (C), or (D), or any

off ense cover ed by s ecti on 241(a) (2)( A)(i i) f or which both pred icate off

ense s ar e cover ed by sect ion 241( a)(2) (A)(i ), s hall not be subj ec t t o r ev ie w by an y c our

t. ” AE DPA, Pub . L . No . 104 -132, § 440(a), 110 Stat. 1214 (1996).

8 Prio r to the ena ctment of the AEDP A and present ly, the INA has incl uded within the d efinition o f “aggra vated felony,” “illi ci t traf ficking in a con trolled substa nce (a s define d in sec tion 10 2 of the Co ntrolle d Substances Act [ 21 USC S § 802 ]), including a drug tr aff icki ng cri me (as define d in s ecti on 924(c) of title 18, Unit ed St ate s Code ). ” 8 U. S.C. § 1101 (a)(43)(1995).

9 Secti on 306(a)(2) of the IIRIRA provides: “Notwithstanding any otherprovisi on of law , no court shall have jur isdi ction to revi ew any f inal

o rder of removal against an al ien who is removable by reason o f havin g committe d a crimi nal of fen se cov ered i n sec ti on 212(a) (2) or 237(a)(2)(A)(iii), (B ), (C), or (D), or any off ense cover ed by s ecti on 237 (a)(2 )(A)( ii).” IIRIRA, Pub. L. No . 104-208, § 30 6(a)(2 ), 110 Stat. 3009 (1996). W ith some exceptions not rel evant here, thi s jurisdictionCir cuit o f jurisdiction over that petition or render moot the claims in that petition. Id

. Moreover, when the

Fifth Circu it later ruled on GarciaEchaverria’s pet ition for r eview, it had no choice but t

o dismiss that petition for l a ck of jurisdiction. Section 44 0(a) 7 of the AEDPA

stripped courts of jurisdict i on to revie

w final orders o f deport

ation ag ainst alie

ns who ar e subject to depo r tationfor havi

ng commi

tted cer tain crim inal offe nses, including “aggravated f

elonies.” 8 AEDPA, Pub. L. No. 104- 132, § 440(a), 110 Stat. 12 14 (1996) ; Figueroa-Rubio v. INS
, 108 F.3d 110, 111 (6th Cir. 1997). The AEDPA was enacted

onApril 24, 1996, a nd the jurisdiction-stripping provisions became effective on that date. Figue ro a-Rubio , 108 F.3d at 111-12. The AEDPA did not, however, strip courts of jurisdiction over

habeas corpus petitions filed pursuant to 28 U.S.C. § 2241. INS v. St. Cy r , 533 U.S. 289, 314 (2001). Section306 (a) (2) of t he IIR IRA 9 further stripped courts ofNo. 03-3655 United Sta tes v. Ga rcia-Ec haverria 13

stripping provisi on beca me effe c tive on Apr il 1, 19 97, a nd ap plied to

remov al p roce eding s com men cing o n or a fter that da te. Id . at § 309(a). Th is juri sdic ti on-s tri

pping provi sion

app lie d to G arcia-E chav erria’s removal pro ceed ings. U nl ike some provisions of the I IRIRA, the jurisdic tion-stripp ing pro visions d id not raise any retroactivity concerns. Fig uero a-R ubio , 108 F. 3d 110, 112 (6th Cir. 1997) (noting juri sdictionstripping st atutes do not aff ect substanti ve rights)

.

10 The BIA decis ion i ndicates tha t re moval proceedi ngs w ere n ot “commenc ed” against Garc ia-Echaver ria until August 11, 1999, after t he
per manent pro visions o f the IIR IRA had b eco me e ffective o n Ap ril 1

, 1997. It is true that removal pro ceed ings are not “co mm ence d” un til a charging doc ume nt is filed with th e Imm i gration Co urt. Asad v. Reno
, 242 F.3d 702, 705 (6th Cir . 2001). There i s, howe ve r, nothing i n the

re cord to support

the BIA’s fin ding t

hat char ging document s were n o t fil ed in the Im migra tion C ourt un til Augus t 11, 1 999 . In any ev ent, Garcia-Echav erria

was fir st i ssued a Noti ce to Appear on May 13, 1997, and Garci a-Ech averi a conce ded inhis § 2241 peti ti on tha t hi s i mmigr ati on juri sdiction to revie

w final or ders of r emoval a gainst a li en s who ar e subject to removal for having committed an ev e n greater number of criminal offenses, still including “aggravated f

elonies.” II

RIRA, Pub. L. No. 104-208, § 306(a)(2), 110 Stat. 3009 (1996). St. Cyr , 533 U.S. at 297; Calcano-Martinez

v. INS, 533 U.S. 348, 351-52 (2001). The II RIRA was enacted on September 30, 1996, and the pertinent jur isdiction-stripping provision , which was part of th e permanent

rules, became effective on April 1, 1997. The II RIRA did not, however, st

rip cour ts of jurisdiction over habeas petitions filed

pursuant to 28 U.S.C. § 2241. St. Cyr
, 533 U.S. at 314.

Garcia-Echaverria’ s rem ova l proceedings commenced no earlier than May 13, 1997, which was after the enactment of the AEDPA

and after the permanent pr

ovisions of

the I IRI RA had become ef

fectiv e. Therefore, at the time Garcia

Echave rria filed his p etition for revie w in the F ifth Circu

it, courtsof appeals had been stripped of jurisdiction to review fin al orders of removal issued against aliens who a r e removab le for having committed an “agg ravated felony .” 10 14 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

proce edings we re no t com men ced prior to Ap ril 1, 19 97; the refore , his removal p roceedi ngs are covered by the permanent provisions of t he IIRI RA.

11 Ga rcia-E chav erria was ch arged with being re movable on two bases

— for bein g convi cted of

an “agg ravate d felon y” and for bei ng convic ted of a cont roll ed subst ance offense

. Garcia-Echav erria has onl y conte sted the BIA’s deter

minati on that

his Kent ucky drug convict ion const itu ted an “aggrav ated felony.” Because the BIA als o d etermi ned thatGarciaEch averr ia was removabl e based upon hi s convic tion of a co ntrol led subst ance offense

, t he Fif th Cir cuit

would have h eld th at i t la cked juri sdic ti on and di smis sed the a ppeal, wi thout determi ning wh ether Ga rcia-E chav erria’s Kentucky drug conviction constit uted an “agg ravate d felony .” Flor es- Garza v. INS , 328 F.3d 79 7, 802-03 (5th Cir. 2003). The Fifth Circuit, however, retained jurisdiction to determine i ts jurisdiction, including jurisdiction to determine the existence of the jurisdictional fact of whet herGarciaEch averri a

had been convicted of a removable off en se

. Flores-G arza v. INS

, 328 F.3d 797, 802- 03 (5th

Cir. 2003). 11 The Fif th Circuit had no choice but t

o conclude that GarciaE chaver ria had been convicted of a removable off en se, an d thus that it lacked

jurisdiction over the petition for review. As discu ss ed in Garcia-Echaverria v. United States , No. 03- 3285, the Fifth Circuit would have inevitably foun d t hat Garcia-Echav erria

h a d been convicted of an “agg ravated felony,” deprivin g it of jurisdiction over Garcia-Echaverr ia’s petition for review.

2. Stay Issued by the

United States District Court for the Southern District of New York
Despite the passage of

the AEDPA and

the II RIRA, district courtsretain jurisdiction over habeas corpus petitions filed pursuant to 28 U.S.C. § 2241. Absent special circumstances notpresent

here, a petiti o n for a w

rit of hab eas cor

pus is properl y filed only in a cour

t that has personal jurisdiction

over the alien’s immediate custodian. Roman v. Ashcroft, 340 F.3d 314, 319-21 (6th Cir. 2003); Char les v. Chandler , 180No. 03-3655 United Sta tes v. Ga rcia-Ec haverria 15

12 The Se cond Circuit has not yet expressly decided this issue i n a publis hed opin ion. See Hen ders on v. INS , 157 F.3d 10 6, 122-29 (2d Cir. 199 8), cert. denied , 526 U.S. 1004 (1999) (holding that a habeas corpus peti ti on is properly f

iled in a dis trict

cour t th at has pe rsona l juris dict ion

over the pet iti oner’s immediat e cust odian, but declin ing t o answerth e quest ion of whet

her an al ien’ s habeas corp us pe tition is also properly fi led in a dist

rict court t hat has personal juri sdict ion over t he Attor ney General). F.3d 753, 756 (6th Cir. 1999). 12 Garcia-Echaverria was being held in Oakdale, Louisiana; therefore, his ha beas petition was notproperly filed in the S .D.N.Y. On August 8, 2000, the S.D.N.Y. transferred thepetition to the W.D. La. and stayed Garcia-Echaverria’ s remov a l pending further action by the W.D. La. However, the S.D.N.Y. did not enter these actions into its docket

until August 9, 2000. The government arg ues that Feder

al Rule of

Civil Proce dure 58 provides t hat a judgment is not effective until it is ent ered into the court’s docket, and therefore, that the INS did not remove GarciaEc ha ve rr ia in vi ol at io n o f a n e ff ec ti ve st ay.

The S.D.N.Y.’s doc ket s heet indicates that GarciaEchaverria’s petition for

habeas corpus, the S.D.N.Y.’s order transferring that

habeas c orpus pet

ition to the W.D. La., and the S.D.N.Y.’s order granting a sta y of remova

l were not docketed until Aug ust 9, 2000. The fact that the stay had not been entered into the S.D.N.Y.’s do cket until after GarciaEchave rria was removed on Aug

ust 8 or 9, 2 000, alone, is not dispositive inth is cas e. It is the practice in this circuit and at least at one point was the practice in the United States Court of Appeals for the Seco n d Circuit f or the cl erk’s of

fice to provide telephonic notice to the government when a stay has been issued in order to avoid the situation that occurred inthis

case. See, e.g.
, Edwards v. IN S , 59 F.3d 5, 7 n.3 (2d Cir. 1995). Moreov er, the Second Circuit has “rejected the idea that an und ocket ed ord er [i s] a n ulli ty,” citi ng c ase s holding that undocketed oral

and writt

en order s are bin ding on the parties so long as the parties have actual notice of the or ders. Silivanch v. Celeb rity Cruise s, Inc. , 333 F.3d 355, 365 & n.1 16 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

(2d Cir. 2003), cert. denied, 124 S. Ct. 1047 (2004). In this
case, however, there is no evidence that the I NS had actual or constructive notice at the time it remove d Garcia

-Echive rria that the S.D.N.Y. had issued a stay of removal. We conclude that the INS was not bound

then by an order of which it had

no actual or

constructive notic e; there fore, G arcia- Echave rria

wa s n ot re mo ve d i n v io la ti on of an ef fe ct iv e s ta y.

3. Petition for Habeas C orpus Pe nding Before the United St ates District Court for the Western District of Louisiana

Garcia-E chav erria’s removal after his petition for habeas corpus was transferred to the W.D. L a. but before that court ruled on that petition did not deprive Garcia-Echaverria of due process. Under

the permanent provisions of the II RIRA,

analien’s deportation while his pe tition for habeas corpus pursuant to § 2241 is p ending neither deprives the court of jurisdiction over that petition nor does it necessaril y r ender mootthe claims in that petition. Zalawadia v . Ashcroft , __ F.3d __, No. 03-30115, 2004 WL 1115090, at *3-4 (5th Cir. June 4, 2004). It is true that Garcia- Echaverria’s removal made it more dif

ficult for him to pursue his pe ti tion f or habeas corpus before the W.D. La ., b ut it did not make i

t impossible

for him to pursue that petition. We recognize that the result of our

due process analysis is harsh, butit comport s with the II RIRA’s clear g oa l of speeding up the removal process

. Aliens may

be able to mitigate the difficulties posed by removal prior to the conclu sion of the ir court procee dings by securing

adequate representation.

D. Speedy

Tria l A ct and Federal Rule of Criminal Procedure 5(a)

Fi na ll y, Gar ci a-Echaverria arg ues that his indictment should have been

dismisseddue to a violation of § 3161(b) ofNo. 03-3655 United Sta tes v. Ga rcia-Ec haverria 17

13 18 U .S.C. § 31 61(b ) requires: Any in for

mat ionor i ndi ctm e nt cha rging an indivi dual with t he commis sion

of an offense shall be fi led wi thi n th irt y day s f rom the date on which such indivi dual was arrested or served wit h a summons in connection with such charges. If an indiv idual has been char ged wi th afel on y in a dist rict i n which no grand jury has been i n ses sion

duri ng su ch t hir

ty -day peri od, the per iod of time f or fi lin g of the indi ctment shall be extended an additi onal thirty days. T he a ppropriate remedy for a violation of § 3161(b) is dismiss al of the indi ctmen t. 18 U.S.C. § 3162.

14 Fed. R . Crim. P. 5(a ) provide s: (1) A ppe aranc e U pon an Ar rest. (A) A pe rson m aking a n arre st wi thin the United States m ust take the defendant wit

hout unnecessary delay bef ore a magistr ate judge, or be fore a state or lo cal jud icia l offic er as Rul e 5(c) provides, unles s a st atut e provides ot herwis e. (B) A person

maki ng an arre st outs ide t he Unit ed St ates must take the defendant without unnecess ary delay before a mag istrate judge, un less a stat

ute provi des other

wise. the Speedy Trial Ac

t 13 and a violation of Fed . R. Crim. P. 5(a), 14 because

he was not indicted

or initial ly

brought before

a magistr ate until more than thirt y da ys a fter his c ivil dete ntion had ripened into a criminal arrest. To suppor t hi s contentionthat he was being held for criminal prosecution, Garcia-Echav erria

points out that on Sep tem ber 4, 2001, an INS agent “took

[Garcia-Echaverria’s] finge rprints, and

took

a statement from [Garcia -Echav erria] after providing hi m with Miranda warnings,” App e llant’s Br. at 16, that on September

14, 2001, an INS agent informed GarciaEchave rria that he was being held for c rimin al pr osecution, and that t he I NS did not immediately

deport hi m.

Several circuits have held that § 3161(b) does notgener ally apply to alien s held in civ il det entio n, alt hough many circuits have indic ated

an exc eptio n to this general rule exists when there is evide nce of collusion between immigration and criminal prosecu

tion auth orities demonstrating that the alien’s civilde tenti on is a mere ruse to avoid application of the 18 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

Speedy Trial Act. See, e.g.
, United States v. Dyer , 325 F.3d 464, 468-70 (3d Cir.), cert. denied, 124 S. Ct. 457 (2003) (ex plaining the “rus e” exception, but de clining to adopt it because the de fen dant would not have qualified for the exception); United States v. Drummond, 240 F. 3d 133 3, 1335-36 (11th Cir. 2001); United States v. Garcia-Martinez
, 254 F.3d 16, 19-20 (1st Cir. 2001) ; United Sta tes v. De La Pena-Juarez
, 214 F.3d 594, 597-99 (5th Cir.), cert. denied

, 531 U.S. 983 (2 000); United States v. Grajales-Montoya , 117 F.3d 356, 366-67 (8th Cir.) (explaining the “ruse” exception, but declining to adopt it because the defendant would no t have qualified

for the exception), cert. denied, 522 U.S. 1007 (1997); United Sta tes v. Pe na-Carrill

o , 46 F.3d 879, 883 (9th Cir.), cert. denied, 514 U.S. 1122 ( 1995). “ Under th [is] ruse exception, a civil detention triggers the Speedy Tr ia l Act’s time limit when f

ederal criminal officia ls collude wit h civi l authoriti es to detain

an individ

ual pendi ng crim inal cha rges, such that the prima

ry or exclusive purpose

of civil detention is to hold the individual for future prosecution. . . . [T]h e Speedy Trial Act’s time

limit is not triggered by

the fact that the INS is conducting a re asonable investigation in order t o decide whether the reentrant should be prosecuted or deported without prosecution.” Dyer , 325 F.3d at 468-69.

Si mi la rl y, severa

l circuit s have he ld that Fe d. R. Crim. P. 5(a) does not generally

apply to aliens held in civil detention, absent e viden ce of collusion between immigration and pro secutionauthorities. Id . at 470; United States v

. Encarnacion
, 239 F .3d 395 , 398-99 (1st Cir.), cert. denied

, 532 U.S. 1073 (200 1); United States v. Perez-Perez

, 337 F.3d 990, 996-97 (8th Cir.), cert. denied, 12 4 S. Ct. 336 (2003); United States v. Noel , 231 F.3d 833, 83 7 (11th C ir. 2000), cert. denied, 531 U.S. 1200 (2001).

OnAugust 31, 2001, Garci a-Echaverria was plac ed in Sandusky County Jail pursuan

t to an INS detainer. On September

4, 2001, INS Offic er Hamulak interviewed GarciaEchave rria regardi ng his prior removal and subsequent

re en tr y. For purposes of this appeal, w e wi ll assume thatNo. 03-3655 United Sta tes v. Ga rcia-Ec haverria 19

15 Although in United Stat es v. Salgado , 250 F. 3d 438, 454 (6th Cir.),
cert. denied , 534 U.S. 916 (2 001), we he ld that the thirty-day ru le contai ned in § 3 161(b) d oes not begin to run unti l a charging document has been fi led, we do not fi nd the abse nce of a ch a rging document dispositive in t

his ca se. We note that i t may be appropri ate t o create an except ion to Salgado ’s holding — that the thirty-da y rule do es no t begin
to r un un til a charging document has been filed — for situati ons where ther e is evide nce t

hat coll usi on bet ween de porta ti on and pr osecu ti on authori ties led to a delay in fil ing form al charges and a simult aneous peri od of prolong ed deten tion. See, e .g. , United States v. Drummond , 240 F.3d 1333, 1335-36 (11th Cir. 2001). We need not announce s uch an exception in this case, as the delay was less than thirty days.

16 Ga rcia-E chav erria was in iti ally plac ed in d etentio n on F riday, August 31, 2 001 , and w as first intervie wed by H amu lak on Tu esda y, September 4, 2001, which due to the int erveni ng Labor Day weekend was the first wo rkda y followin g Ga rcia-E chav erria’s ar rest. § 3161(b) of the Speedy

Trial Act applies to person s held in detenti on andawaiting removal, when there is evidenc e of collusion between deportation and prosecution

authoriti es. 15 The eventsthat Garcia-Echaverria points to as evidenc e that he was bein

g held f or criminal prose cution — giving him Miranda warnings, taking his fingerpr int s, an d sending

him

a fax informing him that he was being held for prosecution — all occurred on or af

ter September 4, 2001. Assuming withoutdeciding that these ev ent s demonstrate collusion, Garcia-Echav erria

was indicted on October 3, 2 001, within thirty days of September

4, 2001. Any

evidence of collusion does not retro actively

convert Garcia-Echaverria’ s detention prior to Septemb er 4, 200 1 into a cr iminal ar rest. 16 Nor does the fact that the INS failed to re move Garcia-Echaverria

on the same day that

he was a pprehen ded demon strate that his detentionprior toSepte mber 4, 20 01 was a c riminal a rrest. Therefore, § 3161(b) of t he Sp eedy Tr

ial Act was not violated, and the di strict c ourt properly denied GarciaEchave rria’s m otion to dism

iss his indictment on tha

t basis.

While a finding of collusion betwe en the prosecution and deportation

authorities wou ld in dicate that Fed. R. Crim. P. 20 United Sta tes v. Ga rcia-Ec haverria No. 03-3655

17 On app eal, G a rcia-E chav erria ha s not ex plicitly argu ed tha t his deten ti on was un lawful du e to the fact that h e was arre sted w ithout a
warrant and not gi ven a probable- cause det erminat i on within f orty-ei ght hours as requi red by Co unty of Riv erside v. M cLa ugh lin , 500 U.S. 44, 56- 57 (1991). Itis not entirel y clear to what extent the McLaughlin rule and Fed. R. C rim. P . 5(a) o verlap

. In t his case , howe ver, any viol ati on of the McLaug hlin ru le wou ld no t requir e dism issal of the in dictm ent. United States v. Ful ler ton , 187 F. 3d 587, 590 -92 (6 th Cir. 1999) ( suggesting t hat the prope r r eme dy is either applicat ion of the exclus ionary rule or a Bivens action ), cert. denied , 528 U.S. 112 7 (2000 ). 5(a) was violated, Garcia-Echaverr ia would not

be entitled t

o have his indictment dismiss ed on that basis. 17 Typically

, t h e appropr iate remedy

for a vio lation of F ed. R. Crim. P. 5(a ) is the suppress ion of invo luntary statemen ts an d the fruits of suchstatements. Mallory v. United States , 354 U.S. 449, 453 (1957); McNabb v. United States , 318 U.S . 3 32, 341-47 (1943); Dyer , 325 F.3d

at 470 n.2 ; United Sta tes v. Barl ow , 693 F.2d 954, 958 (6th Cir. 1982), cert. denied, 461 U.S. 945 (1983); 1 Charles

Ala n Wr ight, Federal Practice and Procedure: Crimina l

§§ 72-73, 75 (3d ed. 1999). GarciaEchave rria has not in dicated what evidence should be suppressed

as th e result

of any violation o f Fed. R. Crim. P. 5(a). Whil e suppression of evidence in some cases may ultimately

lead to the reversal of a conviction, see, e .g. , McNabb

, 318 U.S. at

347, Garcia-Echaverria c ould have been convicted of un lawful reentry

absent any state

ments that he made while he was unlawfully detained. The re fore, e

ven if

we were to assume that Fed. R. Crim. P . 5(a) was violated, the district court properly de nied Garcia-Echaverria’ s motion to dismiss hi s indictme

nt on that b asis.

III. CONCL USION

For the foregoing reasons, we AFFIRM Garcia

Echaverria’s conviction.