United States v. Garcia-Echaverria

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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 ).