Tercero-Aranda v. Gonzales , 169 F. App'x 368 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 27, 2006
Charles R. Fulbruge III
Clerk
No. 04-51123
Summary Calendar
ROQUE TERCERO-ARANDA,
Petitioner-Appellant,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:02-CV-241
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
An in absentia deportation order was entered against Roque
Tercero-Aranda (Aranda) in 1993. Aranda has been serving a 15
year sentence in Texas state prison for burglary of a habitation.
Immigration authorities have lodged a detainer against Aranda so
that, when he is released by Texas authorities, he is released
directly to the immigration authorities for deportation. Aranda
filed a 28 U.S.C. § 2241 petition asserting that the Attorney
General had custody over him by virtue of the detainer and that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-51123
-2-
he should therefore be turned over immediately to immigration
authorities. He further asserted that he had been under the
Attorney General’s constructive custody longer than was permitted
and that he should simply be released from incarceration
altogether. The district court denied Aranda’s § 2241 petition,
and we affirmed the district court’s judgment.
Aranda filed a motion pursuant to FED. R. CIV. P. 60(b) in
the district court. He argued that neither the district court
nor this court had jurisdiction over his § 2241 petition because
the Attorney General did not have custody over him and was not,
therefore, a proper party-respondent to his petition. Citing
Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004), the district
court pointed out that the Supreme Court had explicitly left open
the question whether the Attorney General was a proper party-
respondent in a case such as this. The district court denied
Aranda’s Rule 60(b) motion, and this appeal followed.
Aranda seeks to proceed in forma pauperis (IFP) in this
court. There is no question that Aranda is a pauper. However,
Aranda’s primary argument, that a different district court
ordered service of process of a § 2241 petition on a prison
warden as Aranda’s custodian, is insufficient to show that the
district court abused its discretion in denying the Rule 60(b)
motion. See Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402
(5th Cir. 1981). Aranda’s arguments concerning mootness,
ripeness, and prematurity were not raised in district court.
No. 04-51123
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Because Aranda has not raised any arguable legal issues on
appeal, his appeal is frivolous. See Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983). Aranda’s motion for IFP is
therefore denied, and his appeal is dismissed. See 5TH CIR.
R. 42.2. Aranda’s motion for stay of deportation is also denied.
ALL OUTSTANDING MOTIONS DENIED; APPEAL DISMISSED.