UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA,

V.

Criminal No. 06-350 (CKK)

FANEL J`OSEPH,
Defendant.

 

 

MEMORANI)UM oPrNroN
(May s, 2018)

Pending before this Court is pro se Defendant Fanel Joseph’s [30} Motion for Declaratory
Relief or Alternateiy an Irnmigration Departure (“Def.’s Mot.”)', the United States’ {32] Response
to the Defendant’s Motion (“Govt_ Resp.”); and the Defendant’s [38] Reply to the Governrnent
(“Def, ’s Reply”). Upon consideration of the pleadings and the entire_record in this case, the Court
DENlES Defendant’s request for an immigration departureJ construes the Defendant’s Motion as-
a petition filed pursuant to 28 U.S.C. § 2241, and transfers this matter to the judicial district where
the Defendant is incarceratedl

Bacl<ground

On or about October 15, 2005, Defendant Fanel Joseph (“Defendant” or “Mr. Fanel) was
arrested in Haiti, and he was held in a Hfaitian jail until he was brought to the United States

approximately 15 months later, Mr. }oseph was indicted by a federal grand jury on Decernber 6,

 

‘ In preparing this Memorandum Opinion, the Court also considered the l.\/Ir. Joseph’s Indictment,
ECF No. l', the transcript from Defendant’s January 3l, 2008 sentencing ECF No_ 17; -a letter
written by Mr. Joseph, dated August 18, 2016, ECF No. 18, t`or which leave to file was granted; a
Mernorandurn in Opposition filed by the Government, ECF N`o. 24‘, Defendant‘s Reply to the
Opposition, ECF No. 26; the Government’s Surreply, ECF No. 28; and this Court’s ()rder dated
January 18, 2017.

2006, and charged with one count of Hostage Taking of a United States National and Aiding and
Abetting and Causing an Act to be Done, in violation of 18 U.S.C. §§ 1203 (a) and 2. See
Indictment, ECF No. 1. On }anuary 30, 2007, the Defendant was arraigned, and he entered a plea
of guilty to one count of Hostage Taking on March 9, 2007. On January 31, 2008, Mr. Joseph was
sentenced to 194 months incarceration, followed by 60 months of supervised release This period
of incarceration, which started as 200 months, incorporated a six month sentence reduction based
upon Defendant’s status as a “deportable alien.” See Transcript of Sentencing, ECF No. 17, at 50
(where this Court found 194 months to be a sentence that was “suffrcient but not greater than
necessary to accomplish the objectives under the statute,” and declined to reduce the Defendant’s
sentence by fifteen months on grounds that “[t]o a large degree, [Defendant] being held [in Haiti]
was [because] he would not admit his role, unlike the other defendants . . . .”).

Defendant’s revised projected release date from the Bureau of Prisons’ (“B(}P”) custody
is November 13, 2019, and he is currently incarcerated at the Rivers Correctional Institution
(“Rivers Cl”) in Winton, North Carolina. See Govt. Resp. at 3.

Defendant’s Previous Motion seeking Credit for Time Incarcerated in Haiti

Defendant requested previously that this Court recalculate his sentence in light of his
fifteen month detention in Haiti prior to his extradition to the United States. See August 18, 2016
letter to the Court, ECF No. 18. The Government’s-response to Defendant’s letter treated it as a
motion to modify Mr. Joseph’s sentence, pursuant to 18 U.S.C. § 3582(c), and asserted that this
Court: (1) had no authority, post~conviction, to reduce or modify Defendant’s sentence because
the exceptions in that statutory section were inapplicablej and (2) had already considered this
request by Defendant during the sentencing hearing Defendant asked the Court to treat his request

for relief as a motion brought under 28 U.SC. § 2241, and to transfer the matter to the United States

District Court for the Southern District of Georgia, the district where he Was incarcerated The
Government did not object to the proposed transfer

On January 18, 2017j this Court issued an ()rder directing the Clerl<’s Ofi'ice to open a new
civil case related to the Defendant’s request for relief, and transferring that case to the District
Court for the Southern District of Georgia. According to the Governrnent, “the BOP reviewed and
audited the defendant’s sentence computations and determined that he had been incarcerated in
Haiti from October 14, 2005, until January 29, 2007, thus entitling him to the 15 months’ credit he
sought” and the Defendant’s release date was adjusted to November 13, 2019. See Govt. Resp.,
ECF No. 32, at 2-3.

Defendant’s Instant Motion

Defendant requests that this Court order BOP to transfer him to a federal correctional
institution that conducts lnstitutional Hearing Programs for deportable aliensj because the facility
in which he is currently housed ~W~ Rivers Cl m does not have such a program, with the effect that
a defendant incarcerated at Rivers CI may not receive a deportation hearing and could be subject
to detention at a United States immigration facility for one year or more after the completion of
his sentencel See Def.’s l\/Iot., ECF No. 30, at l; see also 8 U.S.C. § 1228 (a)(3)(A)
(“Notwithstanding any other provision of law, the Attorney General shafl provide for the initiation
and, to the extent possible, the completion of removal proceedings . . . in the case of any alien
convicted of an aggravated felony before the alien’s release from incarceration for the underlying
aggravated felony.”) Alternatively, Mr. Joseph requests that this Court grant an immigration

departure of up to one year to “remedy any immigration detention beyond [his] term of

imprisonment.” See Def.’s Mot. at 15.2

This Court first addresses Mr. Joseph’s request for a Smr'lh departure, noting that the Court
previously provided the Defendant with a six month immigration departure at the time of l\/lr.
J`oseph’s sentencing based on his status as a “deportable alien.” See Transcript of Sentencing,
ECF No. 17, at 50; See also Smilh v United Si'ales, 27 F.3d 649, 655 (D.C. Cir. 1994) (concluding
that it may be appropriate to apply a downward departure where the defendant’s status as a
deportable alien is “lil<ely to cause a fortuitous increase in the severity of his sentence”). Defendant
fails to proffer any support for this Court granting a second immigration departure Furthermore,
the Government contends that this Court does not have the authority, post-conviction, to reduce or
modify the Defendant’s sentence pursuant to 18 U.S.C. § 3582 (c) (addressing the modification of
an imposed term of imprisonment)‘ While Defendant contends that this “motion is clearly not a
3582,” he provides no alternative basis for this Court to reduce or modify his sentence

The Government argues that because the Defendant is challenging the execution, or serving
of, his sentence, this challenge must be raised pursuant to 28 U.S.C. § 2241. See Smirh v. United
Siares, 277 F. Supp. 2d 100, 104-05 (D.D.C. 2003) (a challenge to a sentence executed by the BOP
is brought under Section 2241)_ ln the instant case, Mr. Joseph asserts that Section 2241 is not his
“only path in this matter” because “the Court has the power to form a remedyunder 1228,” but he
provides no support for this assertion, choosing instead to rely generally on Article III of the
Constitution and a court’s ability to provide declaratory relief Therefore, this Court treats
Defendant’s motion as a petition filed pursuant to 28 U.S.C. § 2241,

A petitioner’s “immediate custodian” is the proper respondent in a Section 2241 habeas

 

1 lt is speculative at this point to conclude that that Mr. Joseph will necessarily be held in
immigration detention for one year.

corpus action. See Rumsjield v. Padilla, 542 U. S. 426, 434-35 (2004); see also B[air~Bey v. Quick,
151 F_3d 1036, 1039 (D.C. Cir. 1998) (“[T]the appropriate defendant in a habeas action is the
custodian of the prisoner[,]” which means the warden of the prison.) (citing Chatmcm-Bey v.
Mornburg, 864 F. 2d 804, 810 (D.C. Cir. 1988) (en banc))). Actions pursuant to Section 2241
must be brought in the district where the defendant is incarcerated as opposed to the district where
the defendant was sentenced, and in this case, that would be the Eastern District of North Carolina.
See Stokes v. U.S. Parole Comm ’n, 374 F.3d 123 5, 1239 (D.C. Cir. 2004) (fmding that the district
court “may not entertain a habeas petition involving present physical custody unless the respondent
custodian is within its territorial jurisdiction.”); see also Ir) re Trl`pati, 836 F.Zd 1406, 1407 (D.C.
Cir. 1988) (“A habeas petition may be adjudicated only in the district in which [defendant’s]
immediate custodian, his warden, is located”).

Accordingly, because Mr. Joseph challenges the execution, or serving of, his sentence, his
Motion shall be treated as a petition filed pursuant to 28 U.S.C. § 2241, and this matter shall be
transferred to the United States District Court for the Eastern District of North Carolina, where

Rivers CI is located A separate Order accompanies this Memorandum Opinion_

2 7 t t
cas nn ear
coLLEEN KoLLAR-KOTELLY
United States District Judge

