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Cliver R. v. Tsoukaris

United States District Court, D. New Jersey

September 10, 2018

CLIVE R., Petitioner,
v.
JOHN TSOUKARIS, et al., Respondents.

          OPINION

          SUSAN D. WIGENTON, UNITED STATES DISTRICT JUDGE

         Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Clive R., filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). As Petitioner has paid the appropriate filing fee, this Court is required to screen the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases, applicable to § 2241 petitions through Rule 1(b), and determine whether it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” For the reasons set forth below, this Court will deny the petition without prejudice.

         I. BACKGROUND

         On or about September 4, 2018, Petitioner, Clive R., filed a petition for a writ of habeas corpus in this Court challenging his ongoing immigration detention. (ECF No. 1). This is not Petitioner's first habeas petition directed at his detention pending removal from the United States. Indeed, Petitioner's current petition is a carbon copy of a brief Petitioner filed in his previous habeas petition, with the only difference being that Petitioner has crossed out the original dates associated with his signature lines and replaced them with new dates. (ECF No. 1; cf. Docket No. 17-11592 at ECF No. 9). In denying Petitioner's previous petition, this Court provided the following summary of the background of Petitioner's detention:

Petitioner . . . is a native and citizen of the United Kingdom who was originally admitted into the United States in March 1975 as a legal permanent resident. Following a considerable criminal history culminating in charges of possession of cocaine with intent to distribute in 2006, Petitioner was issued a notice to appear for removal proceedings in June 2014. That notice, however, was not served on Petitioner until March 2016 as Petitioner had been in state custody at the time the notice to appear was issued. Petitioner was thereafter ordered removed in November 2016, but that removal order was reversed and remanded by the Board of Immigration Appeals (“BIA”) in March 2017.
While Petitioner was litigating his removal proceedings, however, he filed with a petition for a writ of habeas corpus in this district arguing that his detention had become prolonged and therefore violated his Due Process rights. On April 17, 2017, Judge Linares granted that petition as the Government did not oppose the granting of a bond hearing and ordered an immigration judge to conduct a bond hearing for Petitioner. Following a bond hearing, however, the immigration judge denied bond as the immigration judge determined that Petitioner was a flight risk and danger to the community based on his considerable criminal history. Petitioner appealed that decision, but the BIA affirmed the denial of bond. After immigration officials determined that Petitioner was now being held pursuant to their discretionary authority after the granting of Petitioner's habeas petition, Petitioner was thereafter provided another bond hearing, but bond was again denied on May 18, 2017. Petitioner filed a late notice of appeal as to that decision, and BIA therefore dismissed his attempt to appeal. Petitioner thereafter requested a bond redetermination, but that redetermination was also denied on October 3, 2017.
Petitioner's removal proceedings continued throughout the bond litigation period. On December 11, 2017, however, an immigration judge ordered Petitioner removed to the United Kingdom, and denied Petitioner various other forms of relief including asylum, withholding of removal, relief under the Convention Against Torture, and deferral of removal. Petitioner timely appealed. On April 20, 2018, however, the BIA affirmed the denial of relief and order of removal and dismissed Petitioner's appeal. Petitioner is therefore now subject to a final order of removal. It does not appear that Petitioner has filed an appeal with the Court of Appeals or sought a stay of removal since April 2018.

(Docket No. 17-11592 at ECF No. 13 at 1-3, internal record citations omitted). Based on Petitioner's final order of removal, this Court denied Petitioner's previous habeas petition without prejudice on May 23, 2018. (Docket No. 17-11592 at ECF Nos. 13-14).

         Several months later, Petitioner filed his current petition. (ECF No. 1). Petitioner does not allege in his current petition that he appealed the BIA's denial of his appeal, nor that he has received a stay of removal, nor does Petitioner's current petition present any new information.

(Id.). Given that his current petition is a veritable carbon copy of a filing made in Petitioner's previous case, this is not surprising - the original document Petitioner has copied for his current submission was submitted at or about the time Petitioner received his final order of removal. (See Docket No. 17-11592 at ECF No. 9 at 25-26; see also ECF No. 1 at 23-24).

         II. DISCUSSION

         A. Legal Standard

         Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody” and the custody is allegedly “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is currently detained within this Court's jurisdiction, by a custodian within the Court's jurisdiction, and asserts that his continued detention violates due process, this Court has jurisdiction over his claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).

         Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, applicable to Section 2241 petitions through Rule 1(b), the courts are required to preliminarily review habeas petitions and determine whether it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Pursuant to this rule, a district court is “authorized to dismiss summarily any ...


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