(HC) Ogunbanke v. Nielsen et al, No. 1:2018cv00796 - Document 47 (E.D. Cal. 2020)

Court Description: ORDER ADOPTING 46 Findings and Recommendations; ORDER GRANTING 40 Respondent's Motion to Dismiss; ORDER DISMISSING PETITION Without Prejudice; and ORDER Declining to Issue Certificate of Appealability signed by District Judge Dale A. Drozd on 4/2/2020. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAYO OLUGBOYEGA OGUNBANKE, 12 13 14 15 16 17 18 Petitioner, Case No. 1:18-cv-00796-NONE-JDP ORDER GRANTING RESPONDENT’S MOTION TO DISMISS PETITION v. (Doc. No. 40) KIRSTEN NIELSEN, et al., Respondent. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION (Doc. No. 46) Petitioner Tayo Olugboyega Ogunbanke, a former detainee in the custody of the United 19 States Bureau of Immigration and Customs Enforcement (“ICE”) proceeding without counsel, 20 seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) This matter was referred to 21 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On September 16, 2019, petitioner was removed from the United States to Lagos, Nigeria. 23 (See Doc. Nos. 40-1, 41.) On October 15, 2019, respondent moved for dismissal of the petition as 24 having been rendered moot because petitioner is no longer in U.S. custody. (Doc. No. 40.) On 25 December 4, 2019, petitioner was served at his last known address with an order granting him 30 26 days to respond to the motion to dismiss. (Doc. No. 42.) Petitioner did not respond to the motion 27 to dismiss and the time for doing so has passed. On February 13, 2020, the assigned magistrate 28 judge issued findings and recommendations recommending that respondent’s motion to dismiss 1 1 be granted. (Doc. No. 46.) The findings and recommendations were served on petitioner and 2 contained notice that objections thereto were due within fourteen (14) days of service. (Id.) The 3 time for filing objections has passed and petitioner has failed to file any objections to the pending 4 findings and recommendations. 5 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 6 court has conducted a de novo review of this case. The magistrate judge concluded that 7 petitioner’s petition for bond hearing or for release from custody was now moot because 8 petitioner had since been removed to Lagos, Nigeria. (Doc. No. 46 at 3.) The magistrate judge 9 also considered potential collateral consequences to petitioner stemming from his past 10 confinement and found that there were none, and that any appellate challenge of the immigration 11 judge’s deportation order rested exclusive in the jurisdiction of the Court of Appeals. (Id.) Based 12 on these findings, the magistrate judge recommended that respondent’s motion to dismiss be 13 granted without prejudice. (Id. at 4.) Having carefully reviewed the entire file, the court agrees 14 and finds the findings and recommendations to be supported by the record and proper analysis. 15 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 16 a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no 17 absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed 18 under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336 19 (2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district 20 court issue or deny a certificate of appealability when entering a final order adverse to a 21 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 22 Cir. 1997). 23 If, as here, a court grants a motion to dismiss a petition for a writ of habeas corpus, the 24 court may only issue a certificate of appealability when “the applicant has made a substantial 25 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial 26 showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that 27 matter, agree that) the petition should have been resolved in a different manner or that the issues 28 2 1 presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 2 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 3 In the present case, the court concludes that petitioner has not made the required 4 substantial showing of the denial of a constitutional right to justify the issuance of a certificate of 5 appealability. Reasonable jurists would not find the court’s determination that petitioner is not 6 entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that 7 petitioner is deserving of encouragement to proceed further. The court therefore declines to issue 8 a certificate of appealability. 9 Accordingly: 10 1. 11 12 The findings and recommendations issued on February 13, 2020 (Doc. No. 46) are adopted in full; 2. 13 Respondent’s motion to dismiss the petition for writ of habeas corpus (Doc. No. 40) is granted; 14 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed without prejudice; 15 4. The court declines to issue a certificate of appealability; and 16 5. The Clerk of Court is directed to assign a district judge to this case for the 17 18 19 20 purposes of closure and to close this case. IT IS SO ORDERED. Dated: April 2, 2020 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 3

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