(HC) Bone v. Sessions, No. 1:2018cv00971 - Document 6 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Erica P. Grosjean on 8/24/18. Referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Gonzalez, R)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 DONALD DOUGLAS BONE, 11 Case No. 1:18-cv-00971-AWI-EPG-HC Petitioner, 12 FINDINGS AND RECOMMENDATION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION v. 13 JEFF SESSIONS, 14 Respondent. 15 16 Petitioner Donald Douglas Bone is a federal immigration detainee proceeding pro se with 17 18 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. As this Court does not have 19 jurisdiction to entertain the instant petition, the undersigned recommends dismissal. 20 I. 21 BACKGROUND According to the petition, Petitioner is a citizen of Canada who obtained legal permanent 22 1 23 resident status on December 29, 1993. (ECF No. 1 at 16). On March 18, 1997, Petitioner was 24 arrested in connection with a California criminal case, which charged him with violations of 2 25 California Penal Code sections 269 and 288. Petitioner was sentenced on February 26, 1999, 26 1 27 28 Page numbers refer to the ECF page numbers stamped at the top of the page. It appears that a settlement was reached wherein the California Penal Code section 269 charge was dismissed and Petitioner pleaded to a violation of California Penal Code section 288.5. (ECF No. 1 at 25, 42). 2 1 1 and transferred to the custody of the California Department of Corrections and Rehabilitation 2 (“CDCR”). On May 17, 1999, Petitioner was interviewed by an INS3 Special Agent and was 3 served with an arrest warrant and notice to appear, which alleged that Petitioner was subject to 4 removal pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 5 § 1227(a)(2)(A)(iii), for having been convicted of an aggravated felony. (ECF No. 16, 38, 40). 6 While Petitioner was in CDCR custody, an immigration detainer was lodged, and Petitioner is 7 now in custody at the Mesa Verde Detention Center in Bakersfield, California. (ECF No. 1 at 8 16). On September 14, 2012, Petitioner filed a federal petition for writ of habeas corpus 9 10 pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Arizona. The 11 district court denied relief, and Petitioner withdrew his appeal to the Ninth Circuit as he was 12 unable to pay the filing fee. (ECF No. 1 at 16, 18). On July 19, 2018, Petitioner filed the instant petition for writ of habeas corpus, seeking 13 14 dismissal of the immigration charges against him. Petitioner generally argues that his 15 immigration charges are time barred, citing to 18 U.S.C. §§ 3161, 3173, 3282, 3291, the Sixth 16 Amendment, and 28 U.S.C. § 1658. (ECF No. 1). 17 II. 18 DISCUSSION Rule 4 of the Rules Governing Section 22544 Cases requires preliminary review of a 19 20 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 21 to file a response if it “plainly appears from the petition and any attached exhibits that the 22 petitioner is not entitled to relief in the district court.” The Immigration and Nationality Act (“INA”) provides that “[n]otwithstanding any other 23 24 provision of law . . . including section 2241 of Title 28, or any other habeas corpus provision . . . 25 3 “INS” refers to the Immigration and Naturalization Service, which has since been abolished. Most of the INS’s 26 immigration functions were transferred to the Department of Homeland Security (“DHS”), in which Immigration 27 28 and Customs Enforcement (“ICE”) is housed. Flores v. Lynch, 828 F.3d 898, 904 (9th Cir. 2016). 4 The Rules Governing Section 2254 Cases apply to § 2241 habeas petitions. See Rule 1(b) of the Rules Governing Section 2254 Cases (“The district court may apply any or all of these rules to a habeas corpus petition not covered by” 28 U.S.C. § 2254.). 2 1 a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive 2 means for judicial review of an order of removal . . . .” 8 U.S.C. § 1252(a)(5). Section 1252 3 further provides: 4 5 6 7 8 9 Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact. 10 8 U.S.C. § 1252(b)(9). Courts have described § 1252(b)(9) as “‘breathtaking’ in scope and ‘vise11 like’ in grip and therefore swallows up virtually all claims that are tied to removal 12 proceedings.” J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016) (quoting Aguilar v. ICE, 13 510 F.3d 1, 9 (1st Cir. 2007)). The Ninth Circuit has interpreted § 1252(a)(5) and § 1252(b)(9) to 14 “mean that any issue—whether legal or factual—arising from any removal-related activity can 15 be reviewed only through the PFR [petition for review] process.” J.E.F.M., 837 F.3d at 1031. 16 There is a distinction “between claims that ‘arise from’ removal proceedings under 17 § 1252(b)(9)—which must be channeled through the PFR process—and claims that are collateral 18 to, or independent of, the removal process.” J.E.F.M., 837 F.3d at 1032. For example, the Ninth 19 Circuit has held that challenges to immigration detention and an ineffective assistance of counsel 20 claim that arose after an attorney failed to file a timely PFR do not fall within the scope of 21 § 1252(b)(9). Id. (citing Nadarajah v. Gonzales, 443 F.3d 1069 (9th Cir. 2006); Singh v. 22 Gonzales, 499 F.3d 969 (9th Cir. 2007)). However, claims that “are bound up in and an 23 inextricable part of the administrative process” must be raised through the PFR process. 24 J.E.F.M., 837 F.3d at 1033. 25 Here, Petitioner is raising a statute of limitations defense to his removal proceedings. As 26 the petition raises issues that “are bound up in and an inextricable part of the administrative 27 process,” the Court finds that they fall within § 1252(b)(9) and must be raised through the PFR 28 process. J.E.F.M., 837 F.3d at 1033. This Court lacks jurisdiction over Petitioner’s claims. 3 1 III. 2 RECOMMENDATION 3 Based on the foregoing, IT IS HEREBY RECOMMENDED that the petition for writ of 4 habeas corpus be DISMISSED for lack of jurisdiction. 5 This Findings and Recommendation is submitted to the assigned United States District 6 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 7 Rules of Practice for the United States District Court, Eastern District of California. Within 8 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 9 written objections with the court and serve a copy on all parties. Such a document should be 10 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 11 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 12 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 13 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 14 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 IT IS SO ORDERED. Dated: August 24, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.