FILED
United States Court of Appeals
Tenth Circuit
DEC 20 2001
PATRICK FISHER
Clerk
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
No. 01-1441
ELMER MORALES, (District of Colorado)
(D.C. No. 01-Z-1491)
Petitioner-Appellant,
v.
IMMIGRATION AND NATURALIZATION
SERVICE,
Respondent-Appellee.
ORDER AND JUDGMENT(1)
Before HENRY, BRISCOE, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
Elmer Morales appeals the district court's dismissal without prejudice of
his 28 U.S.C. . 2241 habeas petition. He also seeks permission to proceed on
(1) This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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appeal in forma pauperis. We grant his request to proceed in forma pauperis
and affirm the district court.(1)
In his . 2241 petition, Morales sought to challenge the INS' decision to
file a detainer with the state prison officials holding him. Citing to this court's
decision in Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir. 1994), the
district court concluded that it lacked jurisdiction over Morales' petition
because the filing of an INS detainer does not place the petitioner "in custody"
for purposes of . 2241.
A detainer usually serves only as a notice to [] prison authorities
that the INS is going to be making a decision about the
deportability of the alien in the future. The reasoning follows that
the detainer does not serve to establish conclusively either present
or future restraints on liberty. Because there is no actual claim to
the alien following the completion of his sentence, there is no
custody.
Id. at 493. Galviz-Medina made clear, however, that if the detainer were
coupled with an order of deportation, the "in custody" requirement of . 2241
would be met. Morales concedes in his appellate brief that the INS has not
issued an order of deportation. Thus, under Galviz-Medina, the INS detainer
does not place him in custody for purposes of . 2241. Accordingly, the
(1) Although Morales is a state prisoner, he does not need a certificate of
appealability to appeal the district court's dismissal of his 2241 petition.
See Montez v. McKinna, 208 F.3d 862, 867 n.6 (10th Cir. 2000) ("[A] state
prisoner seeking to challenge a detainer filed by a federal agency does not need
a COA to proceed on appeal.").
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district court correctly concluded that it lacked jurisdiction over Morales' .
2241 petition.
The judgment of the United States District Court for the District of
Colorado is hereby AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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