United States District Court, D. New Jersey
D. WIGENTON, UNITED STATES DISTRICT JUDGE
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.
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
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).
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).
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).
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 ...