Payo

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND

INTRODUCTION

The Immigration and Naturalization Service (“INS”) has allegedly filed a detainer against petitioner, a federal prisoner subject to deportation as a felon. Petitioner seeks to compel the INS either to remove the detainer or conduct a deportation hearing.

DISCUSSION

I. Writ of Habeas Corpus

A writ of habeas corpus shall not extend to a prisoner unless he is in custody. 28 U.S.C. § 2241 (c). INS regulations suggest that custody does not begin until the prison sentence on the underlying felony has been served.

8 C.F.R. § 242.2 (a)(5) emphasis added.

The clear inference to be drawn from this language is that, while the INS may issue a detainer during the term of the underlying sentence, such a detainer does not ripen into actual INS custody until the conclusion of the underlying sentence.

This reading is bolstered by the holdings in Campillo v. Sullivan, 853 F.2d 593 (8th Cir.1988) and Prieto v. Gluch, 913 F.2d 1159 (6th Cir.1990). The latter court considered the doctrine of “future custody” as it affected INS detainer notices, concluding that a “detainer notice does not claim the…