Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ARTURO MARTINEZ-SANCHEZ, 

Petitioner, 

vs. CASE NO. 4:09cv350-MP

PAIGE AUGUSTINE, et al.,

Respondents. 

_________________________________/

REPORT AND RECOMMENDATION TO DISMISS § 2241 PETITION

Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241,

doc. 1, and was directed to either pay the $5.00 filing fee or submit a motion to proceed

in forma pauperis by October 9, 2009. Doc. 3. To date, Petitioner has not complied by

paying the fee or filing a motion. 

On Petitioner's motion for expedited review, doc. 4, the Government was directed

to file a brief, expedited response explaining the basis for Petitioner's federal custody. 

Doc. 5 (order to show cause) (incorporated herein by reference). Petitioner had claimed

he was transferred to federal custody upon release from state custody, yet the reason

for his detention was not explained to him or supported by any documentation. 
Page 2 of 3

1

 On the notice of action form, an X appears next to the statement "[d]eportation

or removal from the United States has been ordered." Doc. 7, Attachment 2. As

previously noted, the conviction in case number 5:05cr29-RH was for illegal reentry by a

deported alien. Doc. 5, p. 2. 

2 See Orozco v. INS, 911 F.2d 539, 541 (11th Cir.1990) ("The filing of [a]

detainer, standing alone, did not cause [the alien] to come within the custody of the

INS."); Oguejiofor v. Attorney General, 277 F.3d 1305, 1308, n. 2 (11th Cir. 2002)

(quoting Orozco). See also, Zolicoffer v. United States Dep't of Justice, 315 F.3d 538,

540-41 (5th Cir.2003) (collecting cases). 

Case No. 4:09cv350-MP

The Government responds that Petitioner was taken into federal custody to serve

the six month sentence imposed in this court, case number 5:05cr29-RH. Doc. 7, p. 4

and Attachment 1 (sealed). There is also a detainer filed by Immigration and Customs

Enforcement (ICE), so after his release Petitioner will be turned over to ICE for

deportation. Id., p. 4 and Attachment 2 (ICE Detainer Notice of Action).1

Petitioner's claim that there is no support for his federal confinement is therefore

unsupported. Challenges to the execution of his sentence by the Bureau of Prisons, if

any, have not yet been exhausted and are not reviewable at this time. See doc. 7, pp.

5-6 (noting that exhaustion is required, Petitioner had not filed any administrative

remedies, and explaining the Administrative Remedy Program of the BOP), and

Attachment 3 (declaration). 

Petitioner has not challenged the ICE detainer. Even assuming he is in custody

of that detainer for habeas corpus purposes,2 judicial review of challenges to removal is

extremely limited and jurisdiction is vested exclusively in the court of appeals. See 8

U.S.C. § 1252(b)(9) and § 1252(a)(5), respectively; Aguilar v. U.S. Immigration &

Customs Enforcement, 510 F.3d 1, 8-9 (discussing the jurisdictional limits of review

imposed by statute) (1st Cir. 2007); Garcia de Rincon v. Dep't of Homeland Sec., 539
Page 3 of 3

Case No. 4:09cv350-MP

F.3d 1133, 1137-39 (9th Cir. 2008) (discussing 8 U.S.C. § 1231 and § 1252) (finding

circuit court lacked jurisdiction to review 2004 reinstatement of 1999 expedited removal

order). 

The Government has shown a basis for Petitioner's confinement. Petitioner has

not raised any specific legal challenges to his detention, nor has he exhausted BOP

remedies as to any potential claim. 

It is therefore respectfully RECOMMENDED that this 28 U.S.C. § 2241

proceeding be DISMISSED. 

IN CHAMBERS at Tallahassee, Florida, on November 17, 2009.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.