Garcia v. IMMIGRATION AND NATURALIZATION SERVICE

733 F.Supp. 1554 (1990)

Pablo Eloy GARCIA, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Civ. No. 89-0794.

United States District Court, M.D. Pennsylvania.

February 13, 1990.

Pablo Eloy Garcia, pro se.

Martin C. Carlson, Asst. U.S. Atty., Harrisburg, Pa., for I.N.S.

MEMORANDUM

KOSIK, District Judge.

The petitioner, an inmate at the Allenwood Federal Prison Camp, Montgomery, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) on May 23, 1989. The petitioner was granted leave to proceed in forma pauperis on July 24, 1989. On January 19, 1990, United States Magistrate Raymond J. Durkin filed a report in which he recommended that the petition for writ of habeas corpus be dismissed.

The time period in which the petitioner is permitted to file objections to the report has lapsed, and no objections have been filed. Nor has the petitioner requested an extension of time in which to file objections. When a Magistrate makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. Thomas v. Arn, 474 U.S. 140, 150-153, 106 S.Ct. 466, 472-474, 88 L.Ed.2d 435 (1985). Moreover, when no objections are filed, the district court need only review the record for plain error or manifest injustice. Cf: Bell v. Warner, M.D.Pa. Civil Number 85-0732 (Order, Muir, J., September 25, 1985), at Slip Op. p. 2, citing Nettles v. Wainwright, 677 F.2d 404 (5th Cir.1982); on remand, 677 F.2d 410 (5th Cir.1982); Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir.1983).

The petitioner, a Mariel Cuban refugee, has filed the instant habeas corpus petition to challenge a detainer lodged against him by the United States Immigration and Naturalization Service [hereinafter "INS"]. The lodging of a detainer does not subject the petitioner to INS custody. As a result, the petitioner may not challenge the INS detainer by filing a habeas corpus petition pursuant to 28 U.S.C. § 2241 absent actual custody by the INS. D'Ambrosio v. Immigration and Naturalization Service, 710 F.Supp. 269 (N.D.Cal.1989); Campillo v. Sullivan, 853 F.2d 593 (8th Cir.1988).

Accordingly, we shall adopt the report of the Magistrate and dismiss the instant petition for writ of habeas corpus.