(HC) Nguyen v. Holder et al, No. 1:2011cv00086 - Document 11 (E.D. Cal. 2011)
Court Description: ORDER Granting Respondent's 10 Motion to Dismiss the 1 Petition as Moot; ORDER Dismissing Petition and Directing the Clerk to Close the Case signed by Magistrate Judge Sheila K. Oberto on 05/31/2011. (Flores, E)
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(HC) Nguyen v. Holder et al Doc. 11 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DUNG NGUYEN, 11 Petitioner, 12 13 14 v. ERIC H. HOLDER, et al., 15 Respondents. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00086-SKO-HC ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION AS MOOT (DOCS. 10, 1) ORDER DISMISSING PETITION AND DIRECTING THE CLERK TO CLOSE THE CASE 17 At the time the petition was filed, Petitioner alleged that 18 he was detained by the United States Bureau of Immigration and 19 Customs Enforcement (“ICE”) and was proceeding with a petition 20 for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 21 Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to 22 the jurisdiction of the United States Magistrate Judge to conduct 23 all further proceedings in the case, including the entry of final 24 judgment, by manifesting their consent in writings signed by the 25 parties or their representatives and filed by Petitioner on 26 January 26, 2011, and on behalf of Respondent on January 28, 27 2011. Pending before the Court is Respondent’s motion to dismiss 28 1 Dockets.Justia.com 1 the petition for lack of jurisdiction, filed on April 8, 2011. 2 The twenty-one-day period for filing opposition pursuant to Local 3 Rule 230(l) has passed, but Petitioner has not filed any 4 opposition to the motion to dismiss. 5 I. 6 Petitioner alleged that he is a native of Viet Nam who was Background 7 ordered deported to Viet Nam and who had been unlawfully and 8 indefinitely detained at the Kern County Jail, Lerdo Bakersfield 9 Facility, after having been ordered removed from the United 10 States on October 14, 2008, and having been in custody since 11 August 6, 2010. 12 neither awaiting trial nor serving a sentence on any state or 13 federal criminal case. 14 Zadvydas v. Davis, 533 U.S. 678, 690, 699-700 (2001), he was 15 entitled to relief because there was no significant likelihood 16 that removal would occur in the reasonably foreseeable future. 17 (Pet. 3.) 18 detention under 8 U.S.C. § 1231(a)(6) exceeded Respondent’s 19 statutory authority to detain him and violated the Due Process 20 Clause of the Fifth Amendment. 21 release from custody under reasonable conditions of supervision. 22 (Pet. 5.) (Pet. 2-3.) Petitioner alleged that he was (Pet. 3.) He argued that pursuant to Petitioner contended that his continued, indefinite (Pet. 4.) Petitioner sought 23 Respondent submitted in connection with the motion to 24 dismiss an order of supervision dated April 6, 2011, and signed 25 by Erik S. Bonnar, Deputy Field Officer Director of ICE in 26 Bakersfield, California. 27 Petitioner was ordered removed on August 14, 2008, ICE failed to 28 effect Petitioner’s deportation or removal. The order reflects that after 2 Petitioner was 1 ordered released under supervision on April 6, 2011, under 2 conditions stated in the order of supervision. (Doc. 10-1.) 3 Further, the Court notes that the docket reflects that the 4 motion to dismiss was served on Petitioner at an address in San 5 Jose, the city where Petitioner was ordered to report to federal 6 probation authorities within forty-eight (48) hours of release. 7 (Doc. 10-1.) 8 II. 9 Title 28 U.S.C. § 2241 provides that writs of habeas corpus Proceeding by a Motion to Dismiss 10 may be granted by a district court within its jurisdiction only 11 to a prisoner whose custody is within enumerated categories, 12 including but not limited to custody under the authority of the 13 United States or custody in violation of the constitution, laws, 14 or treaties of the United States. 15 and (3). 16 28 U.S.C. § 2241(a), (c)(1) A district court must award a writ of habeas corpus or issue 17 an order to show cause why it should not be granted unless it 18 appears from the application that the applicant is not entitled 19 thereto. 20 Section 2254 Cases in the United States District Courts (Habeas 21 Rules) is applicable to proceedings brought pursuant to § 2241. 22 Habeas Rule 1(b). 23 answer, motion, or other response,” and thus it authorizes the 24 filing of a motion in lieu of an answer in response to a 25 petition. 26 2004 Amendments. 27 discretion initially to forego an answer in the interest of 28 screening out frivolous applications and eliminating the burden 28 U.S.C. § 2243. Rule 4 of the Rules Governing Habeas Rule 4 permits the filing of “an Rule 4, Advisory Committee Notes, 1976 Adoption and This gives the Court the flexibility and 3 1 that would be placed on a respondent by ordering an unnecessary 2 answer. 3 upon the Court broad discretion to take “other action the judge 4 may order,” including authorizing a respondent to make a motion 5 to dismiss based upon information furnished by respondent, which 6 may show that a petitioner’s claims suffer a procedural or 7 jurisdictional infirmity, such as res judicata, failure to 8 exhaust state remedies, or absence of custody. 9 Advisory Committee Notes, 1976 Adoption. Rule 4 confers Id. The Supreme Court has characterized as erroneous the view 10 that a Rule 12(b)(6) motion is appropriate in a habeas corpus 11 proceeding. 12 434 U.S. 257, 269 n. 14 (1978). 13 language of Rule 4, it has been held in this circuit that motions 14 to dismiss are appropriate in cases that proceed pursuant to 28 15 U.S.C. § 2254 and present issues of failure to exhaust state 16 remedies, O’Bremski v. Maas, 915 F.2d 418, 420 (9th Cir. 1990) (a 17 motion to dismiss for failure to raise any issue of federal law, 18 which was based on the insufficiency of the facts as alleged in 19 the petition to justify relief as a matter of law, was evaluated 20 under Rule 4); White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 21 1989) (procedural default in state court); Hillery v. Pulley, 533 22 F.Supp. 1189, 1194 n.12 (E.D.Cal. 1982) (a motion to dismiss for 23 failure to exhaust state remedies is appropriately considered 24 after receipt of evidence pursuant to Rule 7(a) to clarify 25 whether or not the possible defect, not apparent on the face of 26 the petition, might preclude a hearing on the merits, and after 27 the trial court has determined that summary dismissal is 28 inappropriate). See, Browder v. Director, Ill. Dept. of Corrections, However, in light of the broad 4 1 Here, Respondent’s motion to dismiss is based on mootness. 2 Respondent’s motion is similar in procedural posture to a motion 3 to dismiss for failure to exhaust state remedies or for state 4 procedural default. 5 context of the facts alleged in the petition and reflected in 6 Respondent’s moving papers, the motion does not raise material 7 factual disputes. 8 answer. 9 Further, the motion is unopposed; in the Finally, Respondent has not yet filed a formal The Court therefore exercises its discretion to review 10 Respondent’s motion pursuant to its authority under Habeas Rule 11 4. 12 III. 13 Title 28 U.S.C. § 2241 confers habeas corpus jurisdiction Analysis 14 upon the Court to hear this case. 15 678, 687-88. 16 Zadvydas v. Davis, 533 U.S. However, where a Court is without power to grant the relief 17 requested, then the case is moot. 18 F.2d 774, 775 (9th Cir. 1991) (petition for habeas corpus seeking 19 release form allegedly unlawful, indefinite detention was moot 20 where the government paroled the petitioner). 21 who seeks release has been released under circumstances where 22 there is no reasonable likelihood that the alleged wrong will 23 recur, the petition is moot and will be dismissed. 24 v. Rison, 930 F.2d 773, 776. 25 Picrin-Peron v. Rison, 930 Where a petitioner Picrin-Peron The release sought by Petitioner was release from the 26 custody of the ICE under reasonable conditions of supervision. 27 (Pet. 5.) Respondent has demonstrated that Petitioner has been 28 5 1 2 released from ICE custody under reasonable conditions.1 Federal courts lack jurisdiction to decide cases that are 3 moot because the courts’ constitutional authority extends to only 4 actual cases or controversies. 5 Heckler, 464 U.S. 67, 70-71 (1983). 6 or controversy in which a litigant has a personal stake in the 7 outcome of the suit throughout all stages of federal judicial 8 proceedings and has suffered some actual injury that can be 9 redressed by a favorable judicial decision. Iron Arrow Honor Society v. Article III requires a case Id. A petition for 10 writ of habeas corpus becomes moot when it no longer presents a 11 case or controversy under Article III, § 2 of the Constitution. 12 Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003). 13 A petition for writ of habeas corpus is moot where a 14 petitioner’s claim for relief cannot be redressed by a favorable 15 decision of the court issuing a writ of habeas corpus. 16 v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (quoting 17 Spencer v. Kemna, 523 U.S. 1, 7 (1998)). 18 jurisdictional. 19 District, 228 F.3d 1092, 1098-99 (9th Cir. 2000). 20 petition must be dismissed because nothing remains before the 21 Court to be remedied. 22 23 Burnett Mootness is See, Cole v. Oroville Union High School Thus, a moot Spencer v. Kemna, 523 U.S. 1, 18 (1998). The Court concludes that the petition is moot and must be dismissed. 24 IV. 25 Accordingly, it is ORDERED that: Disposition 26 27 28 1 Petitioner was ordered to provide cooperation and information, appear upon ICE’s request for identification, deportation or removal, and medical examination, and to report periodically at ICE and federal probation offices. (Doc. 10-1.) 6 1 1) 2 GRANTED; and 3 2) 4 The petition for writ of habeas corpus is DISMISSED as moot; and 5 6 Respondent’s motion to dismiss the petition as moot is 3) The Clerk is DIRECTED to close the action because this order terminates the action in its entirety. 7 8 IT IS SO ORDERED. 9 Dated: ie14hj May 31, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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