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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ELIO DIEGUEZ FRIAS,

Petitioner,

vs. Case No. 4:11cv138-RH/WCS

IMMIGRATION & CUSTOM 

ENFORCEMENT (ICE),

Respondent.

 /

REPORT AND RECOMMENDATION

Petitioner initiated this case on April 7, 2011, by filing a petition for writ of habeas

corpus, doc. 1, under 28 U.S.C. § 1441, alleging that he was ordered removed from the

United States "sometime in 1987." Id., at 3. However, Petitioner asserts that there is

"no immigration/deportation agreement between the Republic of Cuba and the United

States" and he was released in 2005 by court order. Id., at 3-4. Petitioner claimed that

as a consequence of a hold placed on him by the Respondent in or about September,

2009, Petitioner "cannot obtain minimum or community custody." Id., at 4. Petitioner

further states he is "unable to qualify for early release programs and or work release"

and contends the hold violates his due process and equal protection rights. Id., at 3, 5. 

As relief, Petitioner sought "an order from this honorable Court ordering ICE to show

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cause and demonstrate that Petitioner would be immediately removed from the United

States upon termination of his sentence in the FDOC or to set aside the ICE hold which

is denying him Due Process and Equal Protection under the law." Id., at 5. 

In response to the petition, Respondent has filed a motion to dismiss the § 2241

petition and states that the hold (detainer) was removed on May 9, 2011. Doc. 11. 

Attached to the motion is a Notice of Action which cancelled "all immigration detainers"

against Petitioner. Doc. 11-1. Accordingly, because Petitioner has been granted the

relief he sought in this petition, Respondents contend it should be dismissed as moot as

there is no longer a controversy between the parties. Doc. 11. 

Petitioner filed a "motion to deny Respondent's motion to dismiss" this case, in

which he contests dismissal and claims he cancellation of the "detainer has not

rendered Petitioner's petition moot." Doc. 12, p. 1. Petitioner contends that when the

hold was placed "on Petitioner's prison file, respondent also entered a description on the

record labeling Petitioner a 'Mariel Cuban.' " Id. Petitioner alleges that the "description

has the same effect on Petitioner's equal protection rights as if the hold had remained in

place." Id. Petitioner contends that he "is still being treated and classified by the

prison's authorities as if the detainer had not been cancelled." Id., at 2.

Attached to Petitioner's response (motion to deny) is a copy of an inmate request

asking why he still is classified as "custody 4 after the detainer from ICE was cancelled." 

Doc. 11, p. 5. The response from Petitioner's classification officer with the Department

of Corrections is that "[a]lthough the ICE detainer was withdrawn, you remain close

custody due to being a Mariel Cuban." Id., at 5. 

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It appears that Petitioner is, in reality, objecting to his custody classification. That

is a matter within the discretion of prison officials. Petitioner's only request relief in this

§ 2241 was to "set aside the ICE hold" and that has been done. The detainer has been

cancelled and no further relief is possible from these Respondents. There is nothing

within the response from Petitioner which reveals Respondents have any control over

the classification given to Petitioner by the Department of Corrections. Therefore, the

motion to dismiss this § 2241 petition, doc. 11, should be granted, and Petitioner's

motion to deny the Respondents' motion, doc. 12, should be denied.

In light of the foregoing, it is respectfully RECOMMENDED that the motion to

dismiss this petition for writ of habeas corpus, filed under 28 U.S.C. § 2241, doc. 11, be

GRANTED, the motion to deny the motion to dismiss, doc. 12, be DENIED, and this

case should be DISMISSED as moot because Petitioner has been granted the relief

sought in the petition. 

IN CHAMBERS at Tallahassee, Florida, on June 28, 2011.

 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 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

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

scope of review of proposed factual findings and recommendations.

Case No. 4:11cv138-RH/WCS

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