The opinion of the court was delivered by: Mitchell, M.J.:
Jacob Kojo Amenuvor, an inmate at the State Correctional Institution at Greensburg has presented a petition for a writ of habeas corpus pursuant to 28 U.S.C.2241. For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
On May 12, 2011, Amenuvor executed a petition challenging his detention by the Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("DHS/ICE") specifically alleging that his present or future detention by DHS/ICE is without statutory authority.
Petitioner is presently serving a life plus 131/2 to 30 year sentence imposed following his conviction of second-degree murder, robbery and carrying a firearm without a license in the Court of Common Pleas of Monroe County, Pennsylvania. This sentence was imposed on January 31, 2001, and has been the subject to appeals in the Pennsylvania courts and an unsuccessful habeas corpus petition in the Middle District of Pennsylvania.*fn1 However, it is not this conviction which he now seeks to challenge here, but rather a detainer issued by DHS/ICE which is lodged at his present place of incarceration.
The background to the federal order of deportation arose after the petitioner's criminal convictions. On November 13, 2002, an Immigration Judge determined that the petitioner was a citizen of Ghana and ordered him removed from the United States and this determination was not appealed.*fn2 Exhibit 5 to the response is the September 2, 2011 declaration of Kent J. Frederick, Chief Counsel for the Philadelphia Office of ICE in which he represents that:
On November 22, 2010, the Board of Immigration Appeals dismissed Amenuvor's appeal of the immigration judge's decision denying his motion to reopen his immigration proceedings. Amenuvor's motion was untimely, being filed seven years after he had an administratively final order of removal.
Currently, Amenuvor is serving a criminal sentence after being convicted of criminal homicide and multiple other offenses related to this crime. He is incarcerated at S.C.I. Greensburg, PA, with an early release date of March 5, 2050.*fn3
ICE placed a detainer with the state correctional facility that will act to transfer his custody to ICE upon completion of his sentence.
In a Memorandum filed on October 6, 2011, we concluded that the petitioner was not "in custody" on the federal charges and accordingly dismissed his petition. A timely appeal was taken to the United States Court of Appeals which ruled on January 11, 2012, that we erroneously concluded that the petitioner was not "in custody" for federal habeas purposes and remanded the matter for consideration, inter alia, of the Government's ripeness argument citing to Simmonds v. INS, 326 F.3d 351, 356-61 (2d Cir. 2003) which concluded that under similar circumstances, the petition did not "satisfy the doctrine of prudential ripeness."*fn4
In Simmonds, Judge Calabresi wrote:
Anthony Simmonds, a prisoner serving an indeterminate life sentence in the State of New York, filed a habeas corpus . seeking to overturn an order that he be deported for his drug and weapon possession convictions. Although we find that Simmonds is in INS custody within the meaning of 28 U.S.C. §2241, considerations of prudence lead us to order that his petition be dismissed as not ripe.
The Simmonds court rejected the position of the district court which, like here, concluded that the petitioner was not "in custody" and determined that he did meet the custody requirement. The court, then went on to consider the ripeness doctrine writing:
"Ripeness" is a term that has been used to describe two overlapping threshold criteria for the exercise of a federal court's jurisdiction. Both are concerned with whether a case has been brought prematurely, but they protect against prematureness in different ways and for different reasons. The first of these ripeness requirements has as its source the Case or Controversy Clause of Article III of the Constitution, and hence goes, in a fundamental way, to the existence of jurisdiction. The second is a more flexible doctrine of ...