(HC) Sisay v. Gonzalez et al, No. 1:2005cv00799 - Document 6 (E.D. Cal. 2005)

Court Description: ORDER DISMISSING 1 Petition for Writ of Habeas Corpus filed by Henok Sisay and ORDER DENYING 4 MOTION to APPOINT COUNSEL filed by Henok Sisay. Signed by Judge Oliver W. Wanger on 6/29/05. {***Civil Case Terminated. CASE CLOSED}(Hellings, J)

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(HC) Sisay v. Gonzalez et al Doc. 6 Case 1:05-cv-00799-OWW-TAG Document 6 Filed 06/29/2005 Page 1 of 7 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 HENOK SISAY, 1:05-cv-0799-OWW-TAG HC Petitioner, 13 ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (Doc. 1) v. 14 ORDER DENYING PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL (Doc. 4) 15 16 ALBERTO GONZALEZ, et al., Respondents. 17 18 I. 19 20 21 22 23 24 25 26 27 INTRODUCTION Petitioner, currently in the custody of the Bureau of Immigration and Customs Enforcement (“ICE”) and proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). The petition alleges that Petitioner’s continued detention violates his substantive and procedural due process rights under the Fifth Amendment to the Constitution and is a violation of Respondent’s statutory authority. 4). (Doc. 1, p. Petitioner has also filed a motion for appointment of counsel. (Doc. 4). 28 1 Dockets.Justia.com Case 1:05-cv-00799-OWW-TAG 1 2 II. Document 6 Filed 06/29/2005 Page 2 of 7 FACTUAL SUMMARY Petitioner is a native and citizen of Ethiopia and is 3 currently being detained at the Lerdo Pre-trial Detention 4 Facility in Bakersfield, California. 5 8, 2002, an Immigration Judge ordered Petitioner removed from the 6 United States. (Doc. 1, p. 2). 7 final order of removal. 8 on March 16, 2005, and has been detained continuously by ICE 9 since that date. 10 (Doc. 1, pp. 2-3). On July Petitioner is now subject to a (Id.). Petitioner entered ICE custody (Doc. 1, p. 3). III. DISCUSSION 11 A. 12 The “Real ID Act,” signed into law May 11, 2005, stripped Jurisdiction Under The Real ID Act 13 the district courts of jurisdiction to hear habeas petitions that 14 challenge final orders of removal. 15 provides: 16 It pertinent part, the Act 20 Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act, except as provided in subsection (e). 21 8 U.S.C. § 1252(a)(5), Emergency Supplemental Appropriations Act 22 for Defense, the Global War on Terror, and Tsunami Relief 2005, 23 Pub L. No. 109-13 (“Real ID Act)(emphasis added). 17 18 19 24 Here, however, Petitioner does not seek judicial review of 25 the underlying removal order. 26 of his continued confinement pending removal under Zadvydas v. 27 Davis, 533 U.S. 678 (2001). 28 a district court from deciding such a challenge. Rather, he challenges the legality Nothing in the Real ID Act precludes 2 Case 1:05-cv-00799-OWW-TAG Document 6 Filed 06/29/2005 Page 3 of 7 1 B. 2 A federal court may only grant a petition for writ of habeas The Habeas Corpus Petition. 3 corpus if the petitioner can show that “he is in custody in 4 violation of the Constitution....” 5 habeas corpus petition is the correct method for a prisoner to 6 challenge the “legality or duration” of his confinement. 7 v. Cox, 931 F.2d 573, 574 (9th Cir. 1991)(quoting Preiser v. 8 Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to 9 Rule 1 of the Rules Governing Section 2254 Cases.1 28 U.S.C. § 2241(c)(3). A Badea However, the 10 petition must “allege facts concerning the applicant’s commitment 11 or detention,” 28 U.S.C. § 2242, and the Petitioner must make 12 specific factual allegations that would entitle him to habeas 13 corpus relief if they are true. 14 418, 420 (9th Cir. 1990); United States v. Poopola, 881 F.2d 811, 15 812 (9th Cir. 1989). 16 O’Bremski v. Maass, 915 F.2d Pursuant to Rule 4 of the Rules Governing Section 2254 17 Cases, the Court is required to make a preliminary review of each 18 petition for writ of habeas corpus. 19 the face of the petition...that the petitioner is not entitled to 20 relief,” the Court must dismiss the petition. 21 Rules Governing § 2254 Cases; see also, Hendricks v. Vasquez, 908 22 F.2d 490 (9th Cir. 1990). 23 “If it plainly appears from Rule 4 of the In the instant case, Petitioner alleges that his mandatory 24 and indefinite detention by ICE is in violation of the Fifth 25 Amendment of the U.S. Constitution and in violation of 26 27 28 The Rules Governing § 2254 Cases can be applied to petitions other than those brought under § 2254 at the Court’s discretion. See, Rule 1(b) of the Rules Governing § 2254 Cases. 1 3 Case 1:05-cv-00799-OWW-TAG Document 6 Filed 06/29/2005 Page 4 of 7 1 Respondent’s statutory authority. 2 the United States Supreme Court in Zadvydas, 533 U.S. 678. This issue was addressed by 3 In Zadvydas, the Supreme Court found that the habeas corpus 4 statute grants federal courts the authority to determine whether 5 post-removal-period detention is pursuant to statutory 6 authority.2 7 Immigration and Nationality Act’s (“INA”) post-removal-period 8 detention statute does not permit indefinite detention, but 9 instead implicitly “limits an alien’s post-removal-period Id. at 699. In addition, the Court held that the 10 detention to a period reasonably necessary to bring about that 11 alien’s removal from the United States.” 12 with making such a determination, the Court must consider “the 13 statute’s basic purpose, namely, assuring the alien’s presence at 14 the moment of removal.” 15 take appropriate account of the Executive Branch’s “greater 16 immigration related expertise,” ICE’s “serious administrative 17 needs and concerns,” and the “Nation’s need to speak with one 18 voice in immigration matters.”3 19 Id. at 699. Id at 689. When faced In addition, the Court must Id. at 700. The Supreme Court attempted to limit those occasions when 20 the federal court would need to make such “difficult judgments” 21 by setting a “presumptively reasonable period of detention” of 22 The Supreme Court analyzed the constitutionality of the period of post-removal-detention, not the period of post-removal. 2 23 24 25 26 27 28 The Ninth Circuit’s decision in Ma v. Reno, 208 F.3d 815, 818 (9th Cir. 2000), cert. granted, 121 S.Ct. 297, consolidated with Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999), cert. granted, 2000 WL 38879, was vacated by the U.S. Supreme Court as resting solely on the “‘absence’ of an ‘extant or pending’ repatriation agreement without giving due weight to the likelihood of successful future negotiations.” Zadvydas v. Davis, 533 U.S. 702 (2001). 4 Case 1:05-cv-00799-OWW-TAG Document 6 Filed 06/29/2005 Page 5 of 7 1 six months. 2 that there is no reasonable likelihood of repatriation. 3 701 ("This 6-month presumption, of course, does not mean that 4 every alien not removed must be released after six months. To the 5 contrary, an alien may be held in confinement until it has been 6 determined that there is no significant likelihood of removal in 7 the reasonably foreseeable future."). 8 9 Id. at 700-701. The burden is on the alien to show Id. at After six months, and once an alien makes a showing that there is no “significant likelihood of removal in the reasonably 10 foreseeable future, the Government must respond with evidence 11 sufficient to rebut that showing.” 12 seeks release prior to the expiration of the presumptive six- 13 month period, his claims are unripe for federal review. 14 Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 148-49 (1967) 15 ("[The ripeness doctrine's] basic rationale is to prevent the 16 courts, through avoidance of premature adjudication, from 17 entangling themselves in abstract disagreements over 18 administrative policies, and also to protect the agencies from 19 judicial interference until an administrative decision has been 20 formalized and its effects felt in a concrete way by the 21 challenging parties."). 22 Id. However, where an alien See In this case, Petitioner has been in ICE custody following a 23 final order of removal since March 16, 2005. 24 current detention is still well within the six month 25 “presumptively reasonable period of detention.” 26 alleges that he has “received no indication that [Ethiopia] will 27 acquiesce to repatriation in the reasonably foreseeable future,” 28 and that “[a]s a result of that country’s recalcitrance,” ICE has 5 Petitioner’s Petitioner Case 1:05-cv-00799-OWW-TAG Document 6 Filed 06/29/2005 Page 6 of 7 1 “been unable to obtain travel documents” for Petitioner that 2 would effectuate his removal. 3 (Doc. 1, p. 3). Petitioner unsubstantiated allegations alone, however, are 4 insufficient to overcome the presumption of reasonableness of the 5 six month period, and his claims of constitutional violations are 6 not ripe for review. 7 past the six month presumptive period, he may re-file the instant 8 federal action and obtain review. 9 Petitioner must provide "good reason to believe that there is no Should Petitioner’s detention continue At that time, however, 10 significant likelihood of removal in the reasonably foreseeable 11 future." Zadvydas, 533 U.S. at 701. 12 13 B. 14 There currently exists no absolute right to appointment of Motion for Appointment of Counsel. 15 counsel in habeas proceedings. 16 F.2d 479, 481 (9th Cir.), cert. denied, 358 U.S. 889 (1958); 17 Mitchell v. Wyrick, 727 F.2d 773 (8th Cir.), cert. denied, 469 18 U.S. 823 (1984). 19 the appointment of counsel at any stage of the case "if the 20 interests of justice so require." 21 Section 2254 Cases. 22 lack of ripeness obviates Petitioner’s need for counsel at this 23 time. 24 counsel is denied as moot. 25 // 26 // 27 // See e.g., Anderson v. Heinze, 258 However, Title 18 U.S.C. § 3006A, authorizes See Rule 8(c), Rules Governing The dismissal of the instant petition for Accordingly, Petitioner’s motion for appointment of (Doc. 4). 28 6 Case 1:05-cv-00799-OWW-TAG 1 IV. Document 6 Filed 06/29/2005 Page 7 of 7 CONCLUSION 2 For the reasons set forth above: 3 1. The Petition for Writ of Habeas Corpus (Doc. 1) is 4 HEREBY DISMISSED WITHOUT PREJUDICE as the claims raised 5 are not ripe for federal review; and 6 7 2. Petitioner’s motion for appointment of counsel (Doc. 4) is DENIED AS MOOT. 8 9 SO ORDERED. 10 /s/ OLIVER W. WANGER 11 ____________________________ Oliver W. Wanger United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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