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United States v. Maeda-Hernandez

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 9, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SOTERO MAEDA-HERNANDEZ, DEFENDANT.

ORDER

On June 27, 2006, defendant pleaded guilty to being a deported alien found in the United States, a violation of 8 U.S.C. § 1326, and was sentenced to a term of eighteen months in prison to be followed by thirty-six months of supervised release. Docket Nos. 15 & 16.

On July 13, 2007, the probation office filed a petition for the issuance of a warrant for defendant based on a violation of supervised release. The petition alleged that petitioner had been arrested in the United States in violation of the condition that he not reenter without permission for reentry. At the time the petition was filed, petitioner was in custody on charges filed in the Southern District of California. A warrant was issued on that day. Docket Nos. 19 & 20.

On January 7, 2008, defendant wrote to the court, explaining that he was serving a thirty-month sentence following his guilty plea to a violation of 8 U.S.C. § 1325 and asked that the supervised release detainer lodged against him be resolved. Docket No. 25. Thereafter, on February 5, 2009, defendant's counsel filed an application for a writ of habeas corpus ad prosequendum, asking that defendant be returned to this court to answer the pending petition for a violation of his supervised release. Docket No. 28. No hearing on the matter has been scheduled and the application for a writ does not suggest any date by which defendant should be returned to this district.

The undersigned, in her current capacity as duty magistrate judge, declines to sign the proposed order issuing the writ. As noted, no proceedings on the violation petition have been calendared and defendant has not shown he has a right to be returned for a resolution of the violation petition before the expiration of his current term. Moreover, he has not suggested he will be prejudiced should the writ not issue Carchman v. Nash, 473 U.S. 716, 725 (1985); Moody v. Daggett, 429 U.S. 78, 87 (1976); United States v. Santana, 526 F.3d 1257, 1261 (9th Cir. 2008); United States v. Throneburg, 87 F.3d 851, 853 (6th Cir. 1996); United States v. Barber, 998 F.Supp. 639, 640 (D. Md. 1998).

IT IS THEREFORE ORDERED that defendant's application of a writ of habeas corpus ad prosequendum (docket no. 28) is denied without prejudice.

20090209

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