           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    United States v. Garcia-Echaverria          No. 03-3655
        ELECTRONIC CITATION: 2004 FED App. 0205P (6th Cir.)
                    File Name: 04a0205p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: Jeffrey M. Gamso, GAMSO, HELMICK &
                  FOR THE SIXTH CIRCUIT                                  HOOLAHAN, Toledo, Ohio, for Appellant. Thomas O.
                    _________________                                    Secor, ASSISTANT UNITED STATES ATTORNEY,
                                                                         Toledo, Ohio, for Appellee. ON BRIEF: Jeffrey M. Gamso,
 UNITED STATES OF AMERICA , X                                            GAMSO, HELMICK & HOOLAHAN, Toledo, Ohio, for
             Plaintiff-Appellee, -                                       Appellant. Thomas O. Secor, ASSISTANT UNITED
                                   -                                     STATES ATTORNEY, Toledo, Ohio, for Appellee.
                                   -  No. 03-3655
            v.                     -                                                         _________________
                                    >
                                   ,                                                             OPINION
 MARCO GARCIA -                    -                                                         _________________
 ECHA VERRIA ,                     -
         Defendant-Appellant. -                                             KAREN NELSON MOORE, Circuit Judge. Defendant-
                                   -                                     Appellant, Marco Garcia-Echaverria (“Garcia-Echaverria”),
                                  N                                      appeals his conviction pursuant to a conditional guilty plea
      Appeal from the United States District Court                       for “Unlawful Reentry by an Illegal Alien,” in violation of
       for the Northern District of Ohio at Toledo.                      8 U.S.C. § 1326(b). On appeal, Garcia-Echaverria argues that
     No. 01-00779—James G. Carr, District Judge.                         his conviction for unlawful reentry should be vacated because
                                                                         (1) his initial removal was unlawful, because at the time he
                     Argued: April 23, 2004                              was removed, the Kentucky drug conviction for which he was
                                                                         removed was on direct appeal; (2) his initial removal violated
                Decided and Filed: July 1, 2004                          due process because at the time he was removed, his petition
                                                                         for review of the Board of Immigration Appeals (“BIA”)
        Before: MERRITT and MOORE, Circuit Judges;                       decision and his motion for a stay of removal were pending
                 DUGGAN, District Judge.*                                before the United States Court of Appeals for the Fifth
                                                                         Circuit, he had filed a petition for a writ of habeas corpus in
                                                                         the United States District Court for the Southern District of
                                                                         New York (“S.D.N.Y.”), which the S.D.N.Y. had transferred
                                                                         to the United States District Court for the Western District of
                                                                         Louisiana (“W.D. La.”), and the S.D.N.Y. had issued a stay
                                                                         of removal until the W.D. La. took further action; and (3) his
                                                                         indictment should have been dismissed due to violations of
    *
                                                                         § 3161(b) of the Speedy Trial Act and Federal Rule of
     The Honorable Patrick J. Duggan, United States District Judge for   Criminal Procedure 5(a) because by the time he was indicted,
the Eastern District of Michigan, sitting by designation.

                                  1
No. 03-3655        United States v. Garcia-Echaverria        3    4        United States v. Garcia-Echaverria                  No. 03-3655

he had been in detention for thirty-three days, and by the time   wanted to appeal his conviction, or in the alternative,
he was first brought before a magistrate, he had been in          requesting shock probation. The Joint Appendix reflects that
detention for thirty-five days.                                   on March 29, 2000, the Kentucky Circuit Court entered an
                                                                  order overruling Garcia-Echaverria’s “motion for
  For the following reasons, we AFFIRM Garcia-                    appointment of counsel, motion for hearing and motion to set
Echaverria’s conviction.                                          aside sentence.”1 J.A. at 168. Subsequently, Garcia-
                                                                  Echaverria filed a motion to reconsider the March 29, 2000
                    I. BACKGROUND                                 order, which was captioned as a “‘BELATED APPEAL RCr
                                                                  11.42 MOTION TO VACATE, SE[T] ASIDE, CORRECT
  In this appeal, Garcia-Echaverria challenges his conviction     SENTENCE OR SET FOR NEW TRIAL AND APPEAL’
for unlawful reentry. On October 3, 2001, a grand jury            ‘APPOINTMENT COUNSEL AND MOTION FOR
returned a one-count indictment, charging Garcia-Echaverria       HEARING.’” J.A. at 153. On April 18, 2000, the Kentucky
with being an alien found in the United States on or about        Circuit Court overruled this motion to reconsider.
August 31, 2001, after having been deported for committing
an “aggravated felony” and without obtaining permission to          On May 30, 2000, Garcia-Echaverria filed a Notice of
reenter from the Attorney General, in violation of 8 U.S.C.       Appeal in the Kentucky Circuit Court, indicating that he
§ 1326(b). After his motions to dismiss the indictment were       sought to appeal the March 29, 2000 and April 18, 2000
denied, Garcia-Echaverria pleaded guilty to the charge of         orders. The Kentucky Court of Appeals’s docket sheet also
unlawful reentry, and the district court sentenced him to         reflects that the appeal related to the March 29, 2000 and
thirty-seven months of imprisonment.                              April 18, 2000 orders. The “General Case Information”
                                                                  section of the docket sheet, however, indicates that the
   Several of Garcia-Echaverria’s arguments on appeal attack      document type is a “Matter of Right Appeal,” and that the
the legality of his prior removal. Garcia-Echaverria, a native    case type is a “Direct appeal - Criminal.” J.A. at 114. On
and citizen of Mexico, entered the United States on or about      February 14, 2001, after Garcia-Echaverria had been
January 1, 1980, and became a lawful permanent resident on        removed, the Kentucky Court of Appeals dismissed the
or about January 26, 1990. On January 6, 1997, Garcia-            appeal upon its own motion. On August 14, 2002, the Clerk
Echaverria was convicted by the State of Kentucky pursuant        of the Court of Appeals for Kentucky wrote a letter to the
to a guilty plea, entered on December 16, 1996, to the charge     U.S. Attorney’s Office, expressing the opinion that the appeal
of “Trafficking Marijuana over 8 ounces, less than 5 pounds,”     docketed on May 30, 2000, “is a direct appeal from two
in violation of K.R.S. 218A.1421(3). Joint Appendix (“J.A.”)      judgments denying relief in a collateral attack on a judgment
at 125-26. On January 10, 1997, the Kentucky Circuit Court        of conviction . . . not a direct appeal from a judgment of
sentenced Garcia-Echaverria to five years of imprisonment         conviction.” J.A. at 165.
for his Kentucky drug conviction. Several months later, on
May 7, 1997, Garcia-Echaverria filed a motion in the                On May 13, 1997, the Immigration and Naturalization
Kentucky Circuit Court, requesting taped copies of the court      Service (“INS”) issued Garcia-Echaverria a Notice to Appear,
proceeding leading up to his Kentucky drug conviction, and        charging that he was deportable due to his Kentucky drug
indicating that the tapes would be used to seek post-judgment
relief. Then, on July 16, 1997, Garcia-Echaverria wrote a
pro-se letter to the Kentucky Circuit Court, indicating that he       1
                                                                          This motion does not appear in the Joint Appendix.
No. 03-3655            United States v. Garcia-Echaverria               5    6    United States v. Garcia-Echaverria          No. 03-3655

conviction under two sections of the Immigration and                         receive the transferred habeas petition until August 14, 2000,
Nationality Act (“INA”) — § 237(a)(2)(A)(iii) (codified as                   and dismissed the petition for non-payment of filing fees on
8 U.S.C. § 1227(a)(2)(A)(iii)) for being convicted of an                     November 1, 2000.
“aggravated felony” and § 237(a)(2)(B)(i) (codified as 8
U.S.C. § 1227(a)(2)(B)(i)) for being convicted of controlled                    Garcia-Echaverria was found in the United States on
substance offense. On September 7, 1999, an Immigration                      August 31, 2001, when he was stopped for speeding by
Judge (“IJ”) ordered Garcia-Echaverria removed from the                      officers of the Ohio Highway Patrol at Fremont, Ohio.
United States. On July 20, 2000, the BIA dismissed Garcia-                   Officers of the Highway Patrol notified the INS, and Garcia-
Echaverria’s appeal, finding that a waiver of inadmissiblity                 Echaverria was placed in Sandusky County jail pursuant to an
pursuant to § 212(c) of the INA (originally codified as 8                    INS detainer. On September 4, 2001, INS officer Matthew
U.S.C. § 1182(c), but repealed by the Illegal Immigration                    Hamulak interviewed Garcia-Echaverria after administering
Reform and Immigrant Responsibility Act (“IIRIRA”), 104                      Miranda warnings. During this interview, Garcia-Echaverria
Pub. L. No. 104-208, § 304(b), 110 Stat. 3009 (1996)), was                   admitted that he had previously been removed and that he had
not available to him, and that he was statutorily ineligible for             reentered without obtaining permission from the Attorney
cancellation of removal pursuant to § 240A(a) of the INA                     General. Garcia-Echaverria also consented to having his
(codified at 8 U.S.C. § 1229b).                                              fingerprints taken at that time. On September 6, 2001,
                                                                             Hamulak requested from INS headquarters the records
  Garcia-Echaverria was removed on either August 8 or 9,                     pertaining to Garcia-Echaverria’s prior removal, which he
2000, after he had made filings in the Fifth Circuit and the                 received on September 22, 2001. On September 14, 2001,
S.D.N.Y. On August 7, 2000, Garcia-Echaverria filed in the                   INS officer Neal Baker sent Garcia-Echaverria an “INS
Fifth Circuit a petition for review of the BIA’s decision and                DETAINEE RESPONSE SHEET,” informing Garcia-
a motion for a stay of removal, which were docketed on                       Echaverria that he would not receive an IJ hearing, that his
August 10, 2000. After Garcia-Echaverria was removed, the                    prior order of deportation had been reinstated, and that he was
Fifth Circuit declared moot the motion to stay removal and                   “awaiting prosecution for Re-Entry after Deportation. No
dismissed for lack of jurisdiction the petition for review.                  further contact will be made with you by the Detention &
While he was held in Oakdale, Louisiana awaiting removal,                    Deportation Office until that is resolved.” J.A. at 89.
Garcia-Echaverria sent a petition for a writ of habeas corpus
to the S.D.N.Y.2 On August 8, 2000, the S.D.N.Y. ordered                       The district court had jurisdiction over Garcia-Echaverria’s
the habeas petition to be filed and docketed, transferred the                criminal prosecution pursuant to 18 U.S.C. § 3231 because
petition to the W.D. La., and stayed removal pending further                 Garcia-Echaverria was indicted for an offense against the
action by the W.D. La. However, neither Garcia-Echaverria’s                  laws of the United States. This court has jurisdiction over the
habeas petition nor the S.D.N.Y.’s orders transferring the                   appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
petition and granting the stay were entered on the S.D.N.Y.’s
docket sheet until August 9, 2000. The W.D. La. did not


    2
      According to the S.D.N .Y.’s order transferring Garcia-E chaverria’s
habeas petition and granting a stay of remova l, the S.D.N.Y .’s pro-se
office received the petition on July 12, 2000.
No. 03-3655        United States v. Garcia-Echaverria        7    8       United States v. Garcia-Echaverria               No. 03-3655

                      II. ANALYSIS                                sheets when determining the finality of a conviction. Rather
                                                                  Aguilera-Enriquez provides, “The Immigration authorities
A. Standard of Review                                             must look to judicial records to determine whether a person
                                                                  has been ‘convicted’ of a crime. They may not determine on
  This court reviews de novo the denial of a motion to            their own an alien’s guilt or innocence.” Id. Aguilera-
dismiss an indictment and a collateral attack upon a prior        Enriquez prohibits immigration authorities from second
removal order underlying a conviction for unlawful reentry.       guessing, in the context of deportation proceedings, the
United States v. Martinez-Rocha, 337 F.3d 566, 568-69 (6th        ascertainment of an alien’s guilt, but it does not prohibit the
Cir. 2003) (discussing the standard of review for a collateral    district court from questioning, when determining finality, the
challenge under 8 U.S.C. § 1326(d)). This court also reviews      designation given to a particular action on a state court’s
de novo the district court’s application of the Speedy Trial      docket sheet.
Act and of the Federal Rules of Criminal Procedure. United
States v. Burke, 345 F.3d 416, 421 (6th Cir. 2003), cert.            In this case, the district court did not contravene the
denied, 124 S. Ct. 1731 (2004); United States v. Salgado, 250     limitations imposed by Aguilera-Enriquez by examining
F.3d 438, 453 (6th Cir.), cert. denied, 534 U.S. 916 (2001).      various records from the Kentucky Circuit Court and the
                                                                  Kentucky Court of Appeals. The district court determined the
B. Finality of Kentucky Drug Conviction                           finality of Garcia-Echaverria’s conviction from court records
                                                                  and did not second guess the Kentucky Circuit Court’s
  First, Garcia-Echaverria argues that his conviction for         ascertainment of guilt. According to Kentucky Rule of
unlawful reentry should be vacated because he was removed         Criminal Procedure (“RCr”) 11.42, a motion to vacate, set
while his Kentucky drug conviction was on direct appeal.          aside, or correct sentence is a collateral attack and need
Garcia-Echaverria asserts that the Kentucky Court of              normally to be filed within three years of final judgment. At
Appeals’s docket sheet reflects that a direct appeal was          the time Garcia-Echaverria was convicted, a direct appeal
pending at the time he was removed, and that the district court   from a criminal conviction was required to have been filed
improperly looked behind these judicial records to determine      within ten days of final judgment. Commonwealth v. Opell,
the finality of his conviction.                                   3 S.W.3d 747, 750 (Ky. Ct. App. 1999) (citing old RCr
                                                                  12.04).3 The Kentucky Circuit Court’s March 29, 2000 order
   To support an order of deportation, a conviction must be       indicates that Garcia-Echaverria’s initial motion was to set
final. Pino v. Landon, 349 U.S. 901 (1955). Finality requires     aside his sentence, the Kentucky Circuit Court’s April 18,
the defendant to have exhausted or waived his rights to direct    2000 order disposes of a motion to reconsider that initial
appeal. Aguilera-Enriquez v. INS, 516 F.2d 565, 570-71 (6th       motion and cites to RCr 11.42,4 and Garcia-Echaverria’s time
Cir. 1975), cert. denied, 423 U.S. 1050 (1976). The
defendant’s exercise of post-conviction remedies does not,
however, undermine the finality of his conviction. Id. The
finality of a defendant’s conviction must be determined from          3
                                                                        “RCr 12.0 4 was amended effective January 1, 199 9, to allow 30
court records. Id. at 570.                                        days for taking an appeal.” Comm onwealth v. Op ell, 3 S.W .747 , 750 n.2
                                                                  (Ky. Ct. App. 1999).
  Contrary to Garcia-Echaverria’s assertions, Aguilera-
                                                                      4
Enriquez does not restrict courts to an examination of docket           That Garcia-Echaverria may have requested a belated appeal in
                                                                  these motions does not affect the finality of his conviction.
No. 03-3655        United States v. Garcia-Echaverria       9    10       United States v. Garcia-Echaverria                No. 03-3655

for filing a direct appeal had expired in 1997. Therefore, the   1996 (“IIRIRA”) strip courts of jurisdiction to review orders
district court did not err by determining that the motions       of deportation/removal5 issued to aliens who have committed
overruled on March 29, 2000 and April 18, 2000 were              certain criminal offenses, and that the IIRIRA stripped courts
collateral attacks upon Garcia-Echaverria’s conviction. On       of jurisdiction over claims arising from decisions by the
May 30, 2000, Garcia-Echaverria filed a Notice of Appeal in      Attorney General to execute removal orders. The government
the Kentucky Circuit Court, specifying that he sought to         also recognizes, however, that the AEDPA and the IIRIRA
appeal the March 29, 2000 and April 18, 2000 orders. The         did not strip courts of jurisdiction over habeas corpus
Notice of Appeal does not indicate that Garcia-Echaverria        petitions filed pursuant to 28 U.S.C. § 2241. The government
sought to appeal his judgment of conviction entered on           argues that removing Garcia-Echaverria while his petition for
January 6, 1997 or his sentence imposed on January 10, 1997.     review was pending before the Fifth Circuit did not deny him
Additionally, the Kentucky Court of Appeals’s docket sheet       due process, as the Fifth Circuit would not have had
indicates that the appeal pertained to the March 29, 2000 and    jurisdiction over that petition. The government also contends
April 18, 2000 orders.                                           that removing Garcia-Echaverria after the S.D.N.Y. had
                                                                 transferred Garcia-Echaverria’s § 2241 petition to the W.D.
  Garcia-Echaverria bases his entire argument that his           La. and issued a stay of removal did not deny him due
Kentucky drug conviction was not final upon the fact that the    process, because those orders had not been entered into the
“General Case Information” section of the Kentucky Court of      court’s docket at the time Garcia-Echaverria was removed,
Appeals’s docket sheet refers to a “Matter of Right Appeal”      and therefore, were not yet effective.
and a “Direct appeal - Criminal.” Aguilera-Enriquez does not
support Garcia-Echaverria’s argument that a docket sheet           1.      Petition for Review and Motion for a Stay Pending
notation referring to a direct appeal requires the conclusion              Before the United States Court of Appeals for the
that his conviction was not final for removal purposes. The                Fifth Circuit
Kentucky court records as a whole indicate that the appeal
pending when Garcia-Echaverria was removed pertained to            The Fifth Circuit’s docket sheet indicates that Garcia-
collateral attacks upon his conviction. Therefore, Garcia-       Echaverria’s petition for review and motion for a stay of
Echaverria’s conviction was final for removal purposes.          deportation were docketed on August 10, 2000. The Fifth
                                                                 Circuit’s docket sheet further indicates that on August 11,
C. Due Process in Prior Removal                                  2000, the Fifth Circuit declared moot Garcia-Echaverria’s
                                                                 motion for a stay (as Garcia-Echaverria had been removed on
  Next, Garcia-Echaverria argues that his conviction for         August 8 or 9, 2000) and on September 12, 2000, the Fifth
unlawful reentry must be vacated because he was removed in
violation of due process, as court proceedings pertaining to
his removal were pending and an order staying his removal             5
had been issued. In response, the government argues that               The IIRIRA adopted “the term “remov al,’ which e ssentially
                                                                 eliminated a distinction that formerly existed between ‘deportation’
Garcia-Echaverria received due process, in that he received a    proceedings and ‘exclusion p roceed ings.’ Thus, a determination whether
proper hearing before an IJ and an appeal to the BIA. The        an alien is ‘inadmissible’ (i.e., cannot, or did not, enter the country
government points out that the Antiterrorism and Effective       lawfully), or ‘deportable’ (i.e., entered the country lawfully but is no
Death Penalty Act of 1996 (“AEDPA”) and the Illegal              longer entitled to stay), would be determined through ‘remo val’
Immigration Reform and Immigrant Responsibility Act of           proceed ings.” Balogun v. U. S. Att’y Gen., 304 F.3d 130 3, 13 06-0 7 (11th
                                                                 Cir. 2002) (citations omitted).
No. 03-3655             United States v. Garcia-Echaverria               11     12       United States v. Garcia-Echaverria                 No. 03-3655

Circuit granted the Attorney General’s motion to dismiss for                    Circuit of jurisdiction over that petition or render moot the
lack of jurisdiction Garcia-Echaverria’s petition for review.                   claims in that petition. Id.
   Although we do not have the benefit of the Fifth Circuit’s                      Moreover, when the Fifth Circuit later ruled on Garcia-
analysis,6 we conclude that Garcia-Echaverria’s removal after                   Echaverria’s petition for review, it had no choice but to
he had filed a petition for review but before the court ruled on                dismiss that petition for lack of jurisdiction. Section
that petition did not deprive Garcia-Echaverria of due process.                 440(a)7of the AEDPA stripped courts of jurisdiction to review
Under the permanent provisions of the IIRIRA, serving a                         final orders of deportation against aliens who are subject to
petition for review on an officer or employee of the INS does                   deportation for having committed certain criminal offenses,
not give rise to an automatic stay of removal, although the                     including “aggravated felonies.”8 AEDPA, Pub. L. No. 104-
court may issue a stay. 8 U.S.C. § 1252(b)(3)(B); see also                      132, § 440(a), 110 Stat. 1214 (1996); Figueroa-Rubio v. INS,
Bejjani v. INS, 271 F.3d 670, 688-89 (6th Cir. 2001).                           108 F.3d 110, 111 (6th Cir. 1997). The AEDPA was enacted
Moreover, under the permanent provisions of the IIRIRA, an                      on April 24, 1996, and the jurisdiction-stripping provisions
alien’s removal while his petition for review is pending                        became effective on that date. Figueroa-Rubio, 108 F.3d at
neither deprives the court of appeals of jurisdiction over that                 111-12. The AEDPA did not, however, strip courts of
petition nor does it necessarily render moot the claims in that                 jurisdiction over habeas corpus petitions filed pursuant to 28
petition. Bejjani, 271 F.3d at 688-89; see also Amanfi v.                       U.S.C. § 2241. INS v. St. Cyr, 533 U.S. 289, 314 (2001).
Ashcroft, 328 F.3d 719, 725 n.1 (3d Cir. 2003).                                 Section 306(a)(2) of the IIRIRA9 further stripped courts of
   In this case, Garcia-Echaverria was not removed in
violation of an effective stay of removal issued by the Fifth                        7
                                                                                      Section 440(a) of the AEDPA provided: “Any final order of
Circuit, as Garcia-Echaverria’s petition for review did not                     deportation against an alien who is deportable by reason of having
give rise to an automatic stay and the Fifth Circuit’s docket                   committed a criminal offense covered in section 241(a)(2)(A)(iii), (B),
sheet reflects that Garcia-Echaverria was removed before the                    (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which
                                                                                both pred icate offenses are covered by section 241(a)(2)(A)(i), shall not
court ruled upon his motion for a stay. It is true that Garcia-                 be subject to review by any court.” AEDPA, Pub. L. No. 104-132,
Echaverria’s removal made it more difficult for him to pursue                   § 440(a), 110 Stat. 1214 (1996).
his petition for review before the Fifth Circuit; we have relied
upon this fact when issuing stays of deportation/removal for                         8
                                                                                      Prior to the enactment of the AEDP A and presently, the INA has
aliens with petitions for review pending before this circuit.                   included within the d efinition o f “aggravated felony,” “illicit trafficking
Bejjani, 271 F.3d at 688-89. However, Garcia-Echaverria’s                       in a controlled substance (as defined in section 10 2 of the Controlled
removal did not make it impossible for him to pursue his                        Substances Act [21 USC S § 802 ]), including a drug trafficking crime (as
                                                                                defined in section 924(c) of title 18, United States Code).” 8 U.S.C.
petition for review, for his removal did not deprive the Fifth                  § 1101 (a)(43)(1995).

                                                                                     9
                                                                                      Section 306(a)(2) of the IIRIRA provides: “Notwithstanding any
                                                                                other provision of law, no court shall have jurisdiction to review any final
    6
                                                                                order of removal against an alien who is removable by reason of having
      Nothing in the Joint Appendix indica tes the basis for the Fifth          committed a criminal offense covered in section 212(a)(2) or
Circuit’s dismissal for lack of jurisdiction of Garcia-E chaverria’s petition   237(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section
for review. We have obtained the re levant o rder from the Fifth Circuit        237 (a)(2)(A)(ii).” IIRIRA, Pub. L. No . 104-208, § 30 6(a)(2), 110 Stat.
clerk’s office, but the order does not state the court’s reasoning.             3009 (1996). W ith some exceptions not relevant here, this jurisdiction-
No. 03-3655             United States v. Garcia-Echaverria                13     14     United States v. Garcia-Echaverria                No. 03-3655

jurisdiction to review final orders of removal against aliens                    The Fifth Circuit, however, retained jurisdiction to determine
who are subject to removal for having committed an even                          its jurisdiction, including jurisdiction to determine the
greater number of criminal offenses, still including                             existence of the jurisdictional fact of whether Garcia-
“aggravated felonies.” IIRIRA, Pub. L. No. 104-208,                              Echaverria had been convicted of a removable offense.
§ 306(a)(2), 110 Stat. 3009 (1996). St. Cyr, 533 U.S. at 297;                    Flores-Garza v. INS, 328 F.3d 797, 802-03 (5th Cir. 2003).11
Calcano-Martinez v. INS, 533 U.S. 348, 351-52 (2001). The                        The Fifth Circuit had no choice but to conclude that Garcia-
IIRIRA was enacted on September 30, 1996, and the pertinent                      Echaverria had been convicted of a removable offense, and
jurisdiction-stripping provision, which was part of the                          thus that it lacked jurisdiction over the petition for review. As
permanent rules, became effective on April 1, 1997. The                          discussed in Garcia-Echaverria v. United States, No. 03-
IIRIRA did not, however, strip courts of jurisdiction over                       3285, the Fifth Circuit would have inevitably found that
habeas petitions filed pursuant to 28 U.S.C. § 2241. St. Cyr,                    Garcia-Echaverria had been convicted of an “aggravated
533 U.S. at 314.                                                                 felony,” depriving it of jurisdiction over Garcia-Echaverria’s
                                                                                 petition for review.
   Garcia-Echaverria’s removal proceedings commenced no
earlier than May 13, 1997, which was after the enactment of                        2.      Stay Issued by the United States District Court for
the AEDPA and after the permanent provisions of the IIRIRA                                 the Southern District of New York
had become effective. Therefore, at the time Garcia-
Echaverria filed his petition for review in the Fifth Circuit,                     Despite the passage of the AEDPA and the IIRIRA, district
courts of appeals had been stripped of jurisdiction to review                    courts retain jurisdiction over habeas corpus petitions filed
final orders of removal issued against aliens who are                            pursuant to 28 U.S.C. § 2241. Absent special circumstances
removable for having committed an “aggravated felony.”10                         not present here, a petition for a writ of habeas corpus is
                                                                                 properly filed only in a court that has personal jurisdiction
                                                                                 over the alien’s immediate custodian. Roman v. Ashcroft, 340
                                                                                 F.3d 314, 319-21 (6th Cir. 2003); Charles v. Chandler, 180
stripping provision became effective on April 1, 1997, and ap plied to
removal proceedings com mencing on or after that da te. Id. at § 309(a).
This jurisdiction-stripping provision applied to G arcia-E chaverria’s
removal proceed ings. Unlike some provisions of the IIRIRA, the
jurisdiction-stripp ing pro visions d id not raise any retroactivity concerns.   proceedings were not commenced prior to Ap ril 1, 19 97; the refore, his
Figuero a-R ubio , 108 F.3d 110, 112 (6th Cir. 1997) (noting jurisdiction-       removal proceedings are covered by the permanent provisions of the
stripping statutes do not affect substantive rights).                            IIRIRA.

    10                                                                                11
       The BIA decision indicates that removal proceedings were not                     Garcia-Echaverria was charged with being removable on two bases
“commenced” against Garcia-Echaverria until August 11, 1999, after the           — for being convicted of an “agg ravated felon y” and for being convicted
permanent provisions o f the IIRIRA had b ecome effective on Ap ril 1,           of a controlled substance offense. Garcia-Echaverria has only contested
1997. It is true that removal proceed ings are not “co mmenced” until a          the BIA’s determination that his Kentucky drug conviction constituted an
charging document is filed with the Immigration Court. Asad v. Reno,             “aggravated felony.” Because the BIA also determined that Garcia-
242 F.3d 702, 705 (6th Cir. 2001). There is, however, nothing in the             Echaverria was removable based upon his conviction of a controlled
record to support the BIA’s finding that charging documents were not             substance offense, the Fifth Circuit would have held that it lacked
filed in the Immigration Court until August 11, 1999 . In any event,             jurisdiction and dismissed the appeal, without determining whether
Garcia-Echaverria was first issued a Notice to Appear on May 13, 1997,           Garcia-Echaverria’s Kentucky drug conviction constituted an “aggravated
and Garcia-Echaveria conceded in his § 2241 petition that his immigration        felony.” Flores-Garza v. INS, 328 F.3d 79 7, 802-03 (5th Cir. 2003).
No. 03-3655             United States v. Garcia-Echaverria               15     16     United States v. Garcia-Echaverria         No. 03-3655

F.3d 753, 756 (6th Cir. 1999).12 Garcia-Echaverria was being                    (2d Cir. 2003), cert. denied, 124 S. Ct. 1047 (2004). In this
held in Oakdale, Louisiana; therefore, his habeas petition was                  case, however, there is no evidence that the INS had actual or
not properly filed in the S.D.N.Y. On August 8, 2000, the                       constructive notice at the time it removed Garcia-Echiverria
S.D.N.Y. transferred the petition to the W.D. La. and stayed                    that the S.D.N.Y. had issued a stay of removal. We conclude
Garcia-Echaverria’s removal pending further action by the                       that the INS was not bound then by an order of which it had
W.D. La. However, the S.D.N.Y. did not enter these actions                      no actual or constructive notice; therefore, Garcia-Echaverria
into its docket until August 9, 2000. The government argues                     was not removed in violation of an effective stay.
that Federal Rule of Civil Procedure 58 provides that a
judgment is not effective until it is entered into the court’s                    3.    Petition for Habeas Corpus Pending Before the
docket, and therefore, that the INS did not remove Garcia-                              United States District Court for the Western
Echaverria in violation of an effective stay.                                           District of Louisiana

   The S.D.N.Y.’s docket sheet indicates that Garcia-                             Garcia-Echaverria’s removal after his petition for habeas
Echaverria’s petition for habeas corpus, the S.D.N.Y.’s order                   corpus was transferred to the W.D. La. but before that court
transferring that habeas corpus petition to the W.D. La., and                   ruled on that petition did not deprive Garcia-Echaverria of
the S.D.N.Y.’s order granting a stay of removal were not                        due process. Under the permanent provisions of the IIRIRA,
docketed until August 9, 2000. The fact that the stay had not                   an alien’s deportation while his petition for habeas corpus
been entered into the S.D.N.Y.’s docket until after Garcia-                     pursuant to § 2241 is pending neither deprives the court of
Echaverria was removed on August 8 or 9, 2000, alone, is not                    jurisdiction over that petition nor does it necessarily render
dispositive in this case. It is the practice in this circuit and at             moot the claims in that petition. Zalawadia v. Ashcroft, __
least at one point was the practice in the United States Court                  F.3d __, No. 03-30115, 2004 WL 1115090, at *3-4 (5th Cir.
of Appeals for the Second Circuit for the clerk’s office to                     June 4, 2004). It is true that Garcia-Echaverria’s removal
provide telephonic notice to the government when a stay has                     made it more difficult for him to pursue his petition for
been issued in order to avoid the situation that occurred in this               habeas corpus before the W.D. La., but it did not make it
case. See, e.g., Edwards v. INS, 59 F.3d 5, 7 n.3 (2d Cir.                      impossible for him to pursue that petition. We recognize that
1995). Moreover, the Second Circuit has “rejected the idea                      the result of our due process analysis is harsh, but it comports
that an undocketed order [is] a nullity,” citing cases holding                  with the IIRIRA’s clear goal of speeding up the removal
that undocketed oral and written orders are binding on the                      process. Aliens may be able to mitigate the difficulties posed
parties so long as the parties have actual notice of the orders.                by removal prior to the conclusion of their court proceedings
Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 365 & n.1                   by securing adequate representation.
                                                                                D. Speedy Trial Act and Federal Rule of Criminal
    12                                                                             Procedure 5(a)
        The Second Circuit has not yet expressly decided this issue in a
published opinion. See Henderson v. INS, 157 F.3d 10 6, 122-29 (2d Cir.           Finally, Garcia-Echaverria argues that his indictment
199 8), cert. denied, 526 U.S. 1004 (1999) (holding that a habeas corpus
petition is properly filed in a district court that has personal jurisdiction   should have been dismissed due to a violation of § 3161(b) of
over the petitioner’s immediate custodian, but declining to answer the
question of whether an alien’s habeas corp us petition is also properly filed
in a district court that has personal jurisdiction over the Attorney
General).
No. 03-3655            United States v. Garcia-Echaverria                17   18   United States v. Garcia-Echaverria           No. 03-3655

the Speedy Trial Act13and a violation of Fed. R. Crim. P.                     Speedy Trial Act. See, e.g., United States v. Dyer, 325 F.3d
5(a),14because he was not indicted or initially brought before                464, 468-70 (3d Cir.), cert. denied, 124 S. Ct. 457 (2003)
a magistrate until more than thirty days after his civil                      (explaining the “ruse” exception, but declining to adopt it
detention had ripened into a criminal arrest. To support his                  because the defendant would not have qualified for the
contention that he was being held for criminal prosecution,                   exception); United States v. Drummond, 240 F.3d 1333,
Garcia-Echaverria points out that on September 4, 2001, an                    1335-36 (11th Cir. 2001); United States v. Garcia-Martinez,
INS agent “took [Garcia-Echaverria’s] fingerprints, and took                  254 F.3d 16, 19-20 (1st Cir. 2001); United States v. De La
a statement from [Garcia-Echaverria] after providing him                      Pena-Juarez, 214 F.3d 594, 597-99 (5th Cir.), cert. denied,
with Miranda warnings,” Appellant’s Br. at 16, that on                        531 U.S. 983 (2000); United States v. Grajales-Montoya, 117
September 14, 2001, an INS agent informed Garcia-                             F.3d 356, 366-67 (8th Cir.) (explaining the “ruse” exception,
Echaverria that he was being held for criminal prosecution,                   but declining to adopt it because the defendant would not
and that the INS did not immediately deport him.                              have qualified for the exception), cert. denied, 522 U.S. 1007
                                                                              (1997); United States v. Pena-Carrillo, 46 F.3d 879, 883 (9th
  Several circuits have held that § 3161(b) does not generally                Cir.), cert. denied, 514 U.S. 1122 (1995). “Under th[is] ruse
apply to aliens held in civil detention, although many circuits               exception, a civil detention triggers the Speedy Trial Act’s
have indicated an exception to this general rule exists when                  time limit when federal criminal officials collude with civil
there is evidence of collusion between immigration and                        authorities to detain an individual pending criminal charges,
criminal prosecution authorities demonstrating that the alien’s               such that the primary or exclusive purpose of civil detention
civil detention is a mere ruse to avoid application of the                    is to hold the individual for future prosecution. . . . [T]he
                                                                              Speedy Trial Act’s time limit is not triggered by the fact that
                                                                              the INS is conducting a reasonable investigation in order to
    13                                                                        decide whether the reentrant should be prosecuted or deported
        18 U .S.C. § 31 61(b ) requires:
     Any information or indictment charging an individual with the            without prosecution.” Dyer, 325 F.3d at 468-69.
     commission of an offense shall be filed within thirty days from
     the date on which such individual was arrested or served with a            Similarly, several circuits have held that Fed. R. Crim. P.
     summons in connection with such charges. If an individual has            5(a) does not generally apply to aliens held in civil detention,
     been charged with a felony in a district in which no grand jury
     has been in session during such thirty-day period, the period of         absent evidence of collusion between immigration and
     time for filing of the indictment shall be extended an additional        prosecution authorities. Id. at 470; United States v.
     thirty days.                                                             Encarnacion, 239 F.3d 395, 398-99 (1st Cir.), cert. denied,
The appropriate remedy for a violation of § 3161(b) is dismissal of the       532 U.S. 1073 (2001); United States v. Perez-Perez, 337 F.3d
indictment. 18 U.S.C. § 3162.                                                 990, 996-97 (8th Cir.), cert. denied, 124 S. Ct. 336 (2003);
    14                                                                        United States v. Noel, 231 F.3d 833, 837 (11th Cir. 2000),
      Fed. R. Crim. P. 5(a) provide s:                                        cert. denied, 531 U.S. 1200 (2001).
    (1) A ppe aranc e Upon an Arrest.
    (A) A pe rson m aking an arrest within the United States m ust
    take the defendant without unnecessary delay before a magistrate            On August 31, 2001, Garcia-Echaverria was placed in
    judge, or be fore a state or lo cal jud icial officer as Rule 5(c)        Sandusky County Jail pursuant to an INS detainer. On
    provides, unless a statute provides otherwise.                            September 4, 2001, INS Officer Hamulak interviewed Garcia-
    (B) A person making an arrest outside the United States must              Echaverria regarding his prior removal and subsequent
    take the defendant without unnecessary delay before a mag istrate
    judge, unless a statute provides otherwise.
                                                                              reentry. For purposes of this appeal, we will assume that
No. 03-3655            United States v. Garcia-Echaverria             19     20     United States v. Garcia-Echaverria                  No. 03-3655

§ 3161(b) of the Speedy Trial Act applies to persons held in                 5(a) was violated, Garcia-Echaverria would not be entitled to
detention and awaiting removal, when there is evidence of                    have his indictment dismissed on that basis.17Typically, the
collusion between deportation and prosecution authorities.15                 appropriate remedy for a violation of Fed. R. Crim. P. 5(a) is
The events that Garcia-Echaverria points to as evidence that                 the suppression of involuntary statements and the fruits of
he was being held for criminal prosecution — giving him                      such statements. Mallory v. United States, 354 U.S. 449, 453
Miranda warnings, taking his fingerprints, and sending him                   (1957); McNabb v. United States, 318 U.S. 332, 341-47
a fax informing him that he was being held for prosecution —                 (1943); Dyer, 325 F.3d at 470 n.2; United States v. Barlow,
all occurred on or after September 4, 2001. Assuming                         693 F.2d 954, 958 (6th Cir. 1982), cert. denied, 461 U.S. 945
without deciding that these events demonstrate collusion,                    (1983); 1 Charles Alan Wright, Federal Practice and
Garcia-Echaverria was indicted on October 3, 2001, within                    Procedure: Criminal §§ 72-73, 75 (3d ed. 1999). Garcia-
thirty days of September 4, 2001. Any evidence of collusion                  Echaverria has not indicated what evidence should be
does not retroactively convert Garcia-Echaverria’s detention                 suppressed as the result of any violation of Fed. R. Crim. P.
prior to September 4, 2001 into a criminal arrest.16 Nor does                5(a). While suppression of evidence in some cases may
the fact that the INS failed to remove Garcia-Echaverria on                  ultimately lead to the reversal of a conviction, see, e.g.,
the same day that he was apprehended demonstrate that his                    McNabb, 318 U.S. at 347, Garcia-Echaverria could have been
detention prior to September 4, 2001 was a criminal arrest.                  convicted of unlawful reentry absent any statements that he
Therefore, § 3161(b) of the Speedy Trial Act was not                         made while he was unlawfully detained. Therefore, even if
violated, and the district court properly denied Garcia-                     we were to assume that Fed. R. Crim. P. 5(a) was violated,
Echaverria’s motion to dismiss his indictment on that basis.                 the district court properly denied Garcia-Echaverria’s motion
                                                                             to dismiss his indictment on that basis.
  While a finding of collusion between the prosecution and
deportation authorities would indicate that Fed. R. Crim. P.                                         III. CONCLUSION
                                                                               For the foregoing reasons, we AFFIRM Garcia-
    15                                                                       Echaverria’s conviction.
       Although in United States v. Salgado, 250 F.3d 438, 454 (6th Cir.),
cert. denied, 534 U.S. 916 (2001), we held that the thirty-day rule
contained in § 3161(b) d oes not begin to run until a charging document
has been filed, we do not find the absence of a charging document
dispositive in this case. We note that it may be appropriate to create an
exception to Salgado’s holding — that the thirty-day rule do es not begin
to run until a charging document has been filed — for situations where
there is evidence that collusion between deportation and prosecution              17
                                                                                    On appeal, Garcia-Echaverria ha s not explicitly argued that his
authorities led to a delay in filing formal charges and a simultaneous       detention was unlawful du e to the fact that he was arrested without a
period of prolonged detention. See, e.g., United States v. Drummond, 240     warrant and not given a probable-cause determination within forty-eight
F.3d 1333, 1335-36 (11th Cir. 2001). We need not announce such an            hours as required by County of Riverside v. McLaugh lin, 500 U.S. 44, 56-
exception in this case, as the delay was less than thirty days.              57 (1991). It is not entirely clear to what extent the McLaughlin rule and
    16
                                                                             Fed. R. Crim. P. 5(a) o verlap . In this case, however, any violation of the
        Garcia-Echaverria was initially placed in d etention on F riday,     McLaughlin rule would not require dism issal of the indictment. United
August 31, 2 001 , and was first interviewed by Hamulak on Tuesday,          States v. Fullerton, 187 F.3d 587, 590 -92 (6 th Cir. 1999) (suggesting that
September 4, 2001, which due to the intervening Labor Day weekend was        the proper remedy is either application of the exclusionary rule or a
the first workday following Ga rcia-Echaverria’s arrest.                     Bivens action), cert. denied, 528 U.S. 112 7 (2000 ).
