Rosendo M. Martinez v. E. Emmerich

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 14, 2026*
Decided July 14, 2026
Before
MICHAEL B. BRENNAN, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 25-2563
ROSENDO M. MARTINEZ,
Petitioner-Appellant,
v.
E. EMMERICH,
Respondent-Appellee.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 25-cv-158-jdp
James D. Peterson,
Chief Judge.
O R D E R
Rosendo Martinez, a federal prisoner who is not a U.S. citizen, petitioned for a
writ of habeas corpus under 28 U.S.C. § 2241, arguing that he was entitled to immediate
release based on his earned-time credits under the First Step Act. But because DHS has
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 25-2563 Page 2
since reinstated a prior order of expedited removal, Martinez is no longer eligible to
apply time credits. We affirm.
Martinez illegally entered the United States in 2006. Two days later, immigration
officials issued him a Notice and Order of Expedited Removal under 8 U.S.C.
§ 1225(b)(1). The Department of Homeland Security removed Martinez from the
country in 2015, but he later reentered the United States without authorization on an
unknown date.
In 2020, Martinez was convicted in the U.S. District Court for the Southern
District of Texas for a conspiracy to possess with intent to distribute five kilograms or
more of cocaine, and he was sentenced to 120 months’ imprisonment. United States v.
Martinez, No. 7:18CR01492-003 (S.D. Tex. Aug. 17, 2021). He is currently serving his
sentence at the Federal Correctional Institution in Oxford, Wisconsin, and is scheduled
for release on February 21, 2027.
According to Martinez, while incarcerated he participated in work assignments
that entitled him to time credits toward early release and other benefits under the First
Step Act. The Act bars prisoners who are “the subject of a final order of removal” from
applying time credits toward early release. 18 U.S.C. § 3632(d)(4)(E)(i). The Bureau of
Prisons continued to confine Martinez beyond the date on which he claimed eligibility
for early release.
In February 2025, Martinez petitioned for a writ of habeas corpus. See 28 U.S.C.
§ 2241. Martinez asserted that he was not the subject of a final order of removal (the
2006 order having been executed) and that he had earned enough time credits under the
First Step Act to be released immediately. In June 2025, several months after Martinez
filed his petition, DHS reinstated the 2006 order of expedited removal. See 8 U.S.C.
§ 1231(a)(5). In August 2025, the district court denied Martinez’s § 2241 petition. The
court concluded that because Martinez was the subject of a final order of removal, the
First Step Act barred the application of his time credits. See 18 U.S.C. § 3632(d)(4)(E)(i).
On appeal, Martinez argues that the First Step Act did not bar the application of
his time credits when he filed his § 2241 petition because DHS had not yet reinstated his
2006 removal order. He additionally asserts that his work assignment in prison should
have earned him enough time credits to be eligible for release. According to Martinez,
the prison should immediately release him, as it should have done before DHS
reinstated the order.

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No. 25-2563 Page 3
Martinez is correct that at the time he filed his petition for writ of habeas corpus
he was not the subject of a removal order. We have explained that “[o]nce an order has
been executed, it cannot be re-executed,” and it must be reinstated to be effective again.
Valezquez-Olais v. Blanche, 172 F.4th 536, 538 (7th Cir. 2026). When Martinez filed his
petition in February 2025, his 2006 removal order had been carried out. He later
surreptitiously returned to the United States. Assuming Martinez had accrued sufficient
time credits for early release, § 3632(d)(4)(E)(i) did not bar their application at that time.
But it does now. In June 2025, DHS reinstated the 2006 order, and that
reinstatement was retroactive to the date of the original order. 8 U.S.C. § 1231(a)(5) (“the
prior order of removal is reinstated from its original date”). Thus, by the time the
district court ruled on Martinez’s petition, the relevant facts had changed. Martinez was
no longer eligible to apply time credits, and so was no longer eligible for early release.
Martinez appears to suggest that he was wrongfully held beyond his proper release
date, but neither the district court nor the Bureau of Prisons had the benefit of our
decision in Valezquez-Olais at that time. Moreover, Martinez does not explain how the
district court could have ordered his release once the removal order was reinstated.
When the district court entered judgment, Martinez was subject to the limitations on the
application of time credits toward early release under § 3632(d)(4)(E)(i).
AFFIRMED

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