UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
August 28, 2007
RICARDO CENDEJAS, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Hon. Rudi M. Brewster United States Senior District Court Judge
ORDER DENYING PETITIONER'S MOTION PURSUANT TO 28 U.S.C § 2255
Pro se Petitioner Ricardo Cendejas moves to suspend a deportation and removal order pursuant to 28 U.S.C. § 2255, arguing that the lodging of a deportation detainer satisfies the "custody prerequisite" for habeas petitions. A prisoner does not qualify for a writ of habeas corpus "unless-- (1) [h]e is in custody under or by color of the authority of the United States or is committed for trial before some court thereof." 28 U.S.C. § 2241 (c) (2006). Because Cendejas is no longer in custody, the Court hereby DENIES his petition for writ of habeas corpus, as discussed below.
On January 14, 2002, the Court sentenced Cendejas to twenty-one (21) months imprisonment followed by three years of supervised release for violation of 21 U.S.C. §§ 952, 960 (importation of marijuana) and of 21 U.S.C. § 841 (a) (1) (possession of marijuana with intent to distribute). On August 26, 2002 (nunc pro tunc to August 20, 2002) Cendejas filed the instant habeas petition. Respondent United States of America filed its opposition on January 3, 2003.
However, on August 29, 2003, Cendejas was released from prison. See Bettwy Decl. Because it has been more than three years since Cendejas' release date, the term of his three year supervised release has expired. Moreover, there is no record of a deportation or removal proceeding against Cendejas. See id. Therefore, the Court hereby DENIES Cendejas' petition for wit of habeas corpus on jurisdictional grounds because Cendejas does not satisfy the custody prerequisite for habeas petitions.
IT IS SO ORDERED.
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