Opinion
CV 11-4659.
September 26, 2011
Memorandum and Order
Currently before the court is a motion by petitioner Noel Campbell, designated a "Motion for the Resolution of the Detainer That Was Placed Against Petitioner, Based on Violation of Probation and/or Supervised Release." Petitioner is proceedingpro se. Petitioner previously pled guilty before this Court to one count of Possession with Intent to Distribute Cocaine and was sentenced December 3, 2004 to 57 months of imprisonment and four years of supervised release. After his release from custody and deportation to Jamaica, Campbell again illegally entered the country and was sentenced to 24 months imprisonment. He is currently serving that sentence in federal prison in Pennsylvania. On February 10, 2011, the Court issued a warrant of arrest for Campbell, based on the allegation he violated the terms of supervised release, and the United States Marshal lodged the warrant as a detainer. Petitioner's projected release date on the re-entry sentence is September 30, 2012. At that time, he is to be produced before this Court to respond to the charge of violating his supervised release.
Petitioner requests the Court either dismiss the detainer or, in the alternative, "revoke his probation and sentence him in absentia, so that whatever sentence the Court will sentence him to would run concurrent[ly] and expire with the 24 months imprisonment Petitioner is currently serving." Mot. at 3. Although petitioner does not state any basis for jurisdiction, Title 28, section 2241 permits habeas corpus review for federal prisoners "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). "A writ of habeas corpus under § 2241 is available to a federal prisoner who does not challenge the legality of his sentence, but challenges instead its execution subsequent to his conviction."Carmona v. U. S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001). This Court has jurisdiction to hear this case because "a habeas challenge to a future sentence may be brought in the jurisdiction of future custody." Hudson v. United States, No. 10-cv-0116, 2010 WL 3021908, at *1 (E.D.N.Y. July 29, 2010) (citing Evans v. United States, 08-CV-3830 (JFB), 2010 WL 2026433, at *1 (E.D.N.Y. May 17, 2010)); Rumsfeld v. Padilla, 542 U.S. 426, 438, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004)); see also DeVivo v. Mance, No. 08-cv-673, 2009 WL 2882937, at *5 (N.D.N.Y. July 20, 2009) (requests for credit for time served while under detainer of federal court are properly brought pursuant to 28 U.S.C. § 2241).
However, the petition must be denied as premature and not ripe for review. Essentially, Petitioner seeks relief from future incarceration resulting from this detainer, incarceration that is uncertain and speculative and therefore does not have "any present or inevitable effect" upon Petitioner's liberty interest.Moody v. Daggett, 429 U.S. 78, 87, 97 S. Ct. 274, 278-79, 50 L. Ed. 2d 236 (1976). "[I]nsofar as Petitioner's claim seeks relief from a detainer that has yet to be executed, and relief from the outcome of a parole revocation proceeding yet to be conducted, his claims are premature." Powell v. U.S. Marshal Office, No. 09-cv-00058, 2009 WL 839999, at *4 (E.D. Cal. Mar. 30, 2009) (citation omitted); see Hudson, 2010 WL 3021908 at *2 (because petitioner had not yet been brought before the federal court for violating his supervised release, "a decision on the merits of his petition would be conjectural and could turn out to be unnecessary." (citations omitted)); United States v. Romero, 511 F.3d 1281, 1283 (10th Cir. 2008) (affirming district court dismissing as premature petitioner's request for an immediate determination of whether supervised release should run concurrently with his state prison sentence).
Because petitioner's motion is premature, the motion is denied without prejudice. If and when the petitioner appears before the Court to be sentenced for his violation of supervised release, he may renew his request that he not be sentenced to any additional time, in light of the time served for the underlying offence. See Romero, 511 F.3d at 1283 ("If he is sentenced for a supervised release violation at the end of his [current] confinement, nothing precludes the district court from giving him credit for time served." (citation omitted)); Hudson, 2010 WL 3021908, at *2 (noting the court could adjust the sentence for violation of supervised release "perhaps even by not sentencing him to any more time for violating his supervised release in light of his state custody.").