GIL v. MARIN et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
ROBERTO GIL,
Petitioner,
v. CASE NO.: 4:26-cv-16-MW-MAL
WARDEN D. MARIN, et al.,
Respondent.
__________________________/
REPORT AND RECOMMENDATION
Petitioner Roberto Gil is currently in custody at the Adelanto Detention
Facility in Adelanto, California, a processing center used by United States
Immigration and Customs Enforcement. ECF No. 2 at 3. He filed a § 2241 petition
for writ of habeas corpus in this Court complaining he is being unlawfully held in
immigration detention. Id. Although Gil filed his petition under § 2241, the bulk of
his arguments challenge a Miami-Dade County, Florida conviction. Id. at 2-22.
Thus, it is not clear whether Gil’s petition falls under 28 U.S.C. § 2241 or 28 U.S.C. §
2254. In either event, this Court is not the proper forum to consider his petition.
Under § 2241, Adelanto, California, in the Central District of California, is
Gils “district of confinement” and thus is the appropriate place to bring a § 2241
petition. Rumsfeld v. Padilla, 542 U.S. 426, 442 (2004) (As a general rule for § 2241
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petitions, “jurisdiction lies in only one district: the district of confinement.”). Under
§ 2254, a petition challenging a State conviction may be filed either in (1) the federal
district court for the district in which he is in State custody, or (2) the federal district
court for the district “within which the State court was held which convicted and
sentenced him.” 28 U.S.C. § 2241(d). This Court is neither Gil’s custodial district
nor the district of his conviction.
A petition filed in the wrong district can be transferred to the right one. 28
U.S.C. § 1406. The Court does not recommend transfer of Gil’s petition, however,
because it is unclear whether Gil is seeking relief under § 2241 or § 2254, and thus
unclear where to transfer. Furthermore, Gil has already sought relief under § 2254
in the Southern District of Florida, and his petition was dismissed. See Gil v. State
of Florida, Case No. 25-cv-24246-BLOOM, Order Dismissing 28 U.S.C. § 2254
Petition for Lack of Jurisdiction, ECF No. 4, Sept. 19, 2025 (attached). Accordingly,
it is respectfully RECOMMENDED:
The Petition for Writ of Habeas Corpus (ECF No. 2) be DISMISSED without
prejudice, and all pending motions (ECF Nos. 3 and 4) be denied as moot.
DONE on January 20, 2026.
s/ Midori A. Lowry
Midori A. Lowry
United States Magistrate Judge
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NOTICE TO THE PARTIES
The case was referred to a magistrate judge for the issuance of all preliminary
orders and any recommendations to the district court regarding dispositive matters.
See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
Objections to these proposed findings and recommendations must be filed within
fourteen days of the date of the Report and Recommendation. Any different deadline
that may appear on the electronic docket is for the court’s internal use only and does
not control. An objecting party must serve a copy of its objections on all other
parties. A party who fails to object to the magistrate judge’s findings or
recommendations contained in a report and recommendation waives the right to
challenge on appeal the district court’s order based on the unobjected-to factual and
legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-24246-BLOOM
ROBERTO GIL,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_________________________________/
ORDER DISMISSING 28 U.S.C. § 2254 PETITION FOR LACK OF JURISDICTION
THIS CAUSE is before the Court on Petitioner Roberto Gil’s pro se Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2254, ECF No. [1] (the “Petition”). Petitioner, who is currently
in Immigration and Customs Enforcement (“ICE”) custody, challenges his state conviction and
sentence for trafficking in cocaine in Case No. F12-21329-C in the Eleventh Judicial Circuit in
and for Miami-Dade County, Florida. As explained below, Petitioner was not “in custody pursuant
to the judgment of a State court” when he filed the Petition. § 2254(a). Therefore, the Petition must
be summarily DISMISSED for lack of jurisdiction.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts
requires the district court to dismiss a section 2254 petition without ordering the State to respond
“[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled
to relief.” Rules Governing § 2254 Cases, R. 4. Likewise, the United States Supreme Court has
consistently held that “[f]ederal courts are authorized to dismiss summarily any habeas petition
that appears legally insufficient on its face[.]” McFarland v. Scott, 512 U.S. 849, 856 (1994)
(alterations added) (citation omitted).
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To obtain federal habeas relief, a petitioner must show that he “is in custody in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The requirement
that a federal habeas petitioner be “in custody” under a state court judgment is jurisdictional. Diaz
v. Fla. Fourth Jud. Cir. ex rel. Duval Cnty., 683 F.3d 1261, 1263 (11th Cir. 2012). To satisfy the
“in custody” requirement, “[a] federal habeas petitioner must be ‘in custody under the conviction
or sentence under attack at the time his petition is filed.’” Id. at 1264 (quoting Maleng v. Cook,
490 U.S. 488, 490–91 (1989)). A petitioner is not “in custody” under a state court judgement if the
sentence he challenges has “fully expired at the time his petition is filed.” Maleng, 490 U.S. at 491
(emphasis in original). “[O]nce the sentence imposed for a conviction has completely expired, the
collateral consequences of that conviction are not themselves sufficient to render an individual ‘in
custody’ for the purposes of a habeas attack upon it.” Id. at 492. A petitioner may challenge a fully
expired sentence only if one of two exceptions are met: (1) no counsel was appointed for the
petitioner, in violation of Gideon v. Wainwright, 372 U.S. 335 (1963); or (2) no channel of review
was available with respect to the prior conviction, through no fault of the petitioner. Birotte v.
Sec’y for Dep’t of Corr., 236 F. App’x 577, 579 (11th Cir. 2007) (citing Lackawanna Cnty. Dist.
Att’y v. Coss, 532 U.S. 394, 404–05 (2001)).
Here, Petitioner, a native of Cuba, was released from state custody on May 22, 2025, and
was in ICE custody at the Adelanto Detention Facility in Adelanto, California when he filed the
instant Petition on September 10, 2025. See Fla. Dep’t of Corr., Corrections Offender Network,
https://pubapps.fdc.myflorida.com/OffenderSearch/Search.aspx (last visited Sept. 18, 2025); U.S.
Immigr. and Customs Enf’t, Online Detainee Locator System, https://locator.ice.gov/odls/#/search
(last visited Sept. 18, 2025). Immigration detention and subsequent removal from the United States
are “collateral consequences” of a conviction that are insufficient to place the petitioner “in
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custody” pursuant to a state court judgment. See Llovera-Linares v. Florida, 559 F. App’x 949,
952 	(11th 	Cir. 	2014) 	(“Llovera–Linares’s 	present 	immigration 	detention 	is 	a 	collateral
consequence of his state court convictions”); Ogunwomoju v. United States, 512 F.3d 69, 70 (2d
Cir. 2008) (“We join our sister circuits that have considered the issue in holding that immigration
detention is not ‘custody’ for the purposes of establishing jurisdiction to consider habeas petitions
challenging a state court conviction pursuant to 28 U.S.C. § 2254”); Broomes v. Ashcroft, 358 F.3d
1251, 1254 (10th Cir. 2004) (“Mr. Abtew is not currently ‘in custody pursuant to a judgment of a
State court,’ but rather is in federal custody awaiting a final removal determination by the
Immigration and Naturalization Service.”). Because Petitioner’s state sentence had fully expired
when he filed the Petition, he was not “in custody” pursuant to a state court judgment, and this
Court lacks jurisdiction over his Petition. See Llovera-Linares, 559 F. App’x at 951 (“Because
Llovera–Linares was not ‘in custody’ pursuant to his 2007 Florida convictions when he filed his
federal habeas petition, the district court lacked subject matter jurisdiction to consider, and thus
properly dismissed, Llovera–Linares’s federal habeas petitions”); see also Mendez v. Alabama,
No. 4:18-CV-02048-KOB-SGC, 2019 WL 2246594, at *2 (N.D. Ala. Mar. 14, 2019) (finding that
a petitioner in immigration detention was not “in custody” under § 2254(a), and the district court
therefore lacked jurisdiction over his petition); Polson v. Alabama, No. 3:13-CV-366-WHA, 2016
WL 5662054, at *3 (M.D. Ala. Sept. 8, 2016) (same).
Moreover, Petitioner cannot satisfy either of the two exceptions to the “in custody”
requirement. His conviction was not obtained without counsel, as he challenges his counsel’s
performance in the Petition. See ECF No. [1]. In addition, Petitioner had channels of review open
to him while he was serving his state sentence, as his exhibits show that he unsuccessfully pursued
collateral relief in state court and had sufficient time to file a federal habeas petition before he was
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released from state custody. See ECF No. [1-1]; Lackawanna, 532 U.S. at 403 (“[O]nce a state
conviction is no longer open to direct or collateral attack in its own right because the defendant
failed to pursue those remedies while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as conclusively valid.”).
Accordingly, it is ORDERED AND ADJUDGED that:
1. 	The Petition, ECF No. [1], is DISMISSED for lack of jurisdiction.
2. 	No certificate of appealability shall issue because the Court lacks jurisdiction to issue
one. Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007). However, a certificate
of appealability is unnecessary to permit the Eleventh Circuit to review the Court’s
order of dismissal. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004).
3. 	The Clerk is DIRECTED to CLOSE this case any DENY all pending motions as
MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, on September 19, 2025.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Roberto Gil, PRO SE
A-025-416-570
Adelanto West ICE Processing Center
10250 Rancho Road
Adelanto, CA 92301
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