In his Tuesday motion for show cause, Shaffer also called into question jail procedures concerning the release of illegal immigrants to Immigration and Customs Enforcement.
Shaffer represented Gerardo Segura-Rodriguez in a traffic case. Segura was arrested Sept. 19. He pleaded guilty to driving under revocation on Oct. 7 and was sentenced to 30 days, minus 19 days’ credit for time served. He was eligible for release Oct. 17, Shaffer said, but he was then held on an immigration detainer.
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“Following the expiration of the immigration detainer, Mr. Segura-Rodriguez was held unlawfully,” Shaffer said in his motion. Segura was entitled to immediate discharge because he’d served his sentence, Shaffer said.
He’d filed a motion for a writ of habeas corpus on Oct. 20. Habeas corpus orders officials at a detention facility to produce an inmate in court so a judge can determine whether the inmate’s detention is lawful.
A writ for Segura was signed Oct. 21 and served on Undersheriff Kevin Walters. It directed Dunlap to have Segura in court Oct. 24. By the time the hearing rolled around, though, ICE had collected Segura and the Montrose County Sheriff’s Office was not able to produce him as the writ required.
“Thus, Sheriff Dunlap disregarded a court order and should be required to show cause as to why he should not be held in contempt of court,” Shaffer said.
He said Dunlap was in indirect contempt and the court should issue a citation requiring Dunlap to appear and explain himself. Additionally, Shaffer asked for a hearing to decide factual issues.
Shaffer said not only was his client denied a hearing on the legality of his detention, but the jail’s practice was questionable.
“While a hearing on the original petition is moot at this time, a hearing on (Segura’s) motion to show cause is necessary to determine whether the sheriff was capable of complying with the court’s writ. The sheriff may not ignore a writ of habeas corpus because he disagrees with underlying issues raised in the original petition for habeas corpus,” Shaffer said in his filing.
Dunlap, jail administrator Jim Gerlach and County Attorney Bob Hill could not be reached for comment Wednesday.
Tuesday night, Dunlap said Shaffer’s filing was too late because it had been more than 10 days since the Oct. 24 hearing. But Shaffer said a 10-day deadline was not imposed at the Oct. 24 hearing. Instead, it was contained in a minute order dated Oct. 28.
“If they want to ignore it, they can ignore it,” he said. “It’s a timely filed motion.”
A judge must sign Shaffer’s motion for an order to show cause. If it is signed, a citation would issue and be served on the sheriff.
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