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Long v. Gartland

United States District Court, S.D. Georgia, Waycross Division

August 29, 2017

DONG YU LONG, Petitioner,
v.
PATRICK GARTLAND, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         Petitioner Dong Yu Long (“Long”), who was formerly housed at the Immigration and Customs Enforcement (“ICE”) Processing Center in Folkston, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Response. (Doc. 9.) For the reasons which follow, I RECOMMEND that the Court DISMISS as moot Long's Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Long in forma pauperis status on appeal.

         BACKGROUND

         Long filed his Petition on May 10, 2017. (Doc. 1.) Long asserts he unsuccessfully attempted to enter the United States as an émigré. (Doc. 1.) He states he has been in ICE's custody as an alien subject to a final order of removal since April 7, 2016. He claims he has not been deported within the ninety (90) day period prescribed by law.[1] Long challenges his detention by claiming he is cooperating with ICE for his removal, is not likely to be removed in the reasonably foreseeable future, and is not a threat to the community. (Id. at pp. 8-9.) Thus, Long requested release from ICE custody.

         On July 20, 2017, Respondent filed his Response to Long's Petition. Respondent maintains Long was released from ICE's custody, pending removal under terms of supervision, on May 23, 2017. (Doc. 9, p. 1.) Indeed, the Court's show cause Order was returned as undeliverable to Long because he is no longer at ICE's processing center in Folkston. (Doc. 7.) Thus, Respondent asserts Long's release from ICE custody renders his Petition moot, and his Petition should be dismissed.

         DISCUSSION

         I. Whether Long's Petition is Moot

         Article III of the Constitution “extends the jurisdiction of federal courts to only ‘Cases' and ‘Controversies.'” Strickland v. Alexander, 772 F.3d 876, 882 (11th Cir. 2014). This “case-or-controversy restriction imposes” what is “generally referred to as ‘justiciability' limitations.” Id. There are “three strands of justiciability doctrine-standing, ripeness, and mootness-that go to the heart of the Article III case or controversy requirement.” Harrell v. The Fla. Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (internal quotation marks and alterations omitted). With regard to the mootness strand, the United States Supreme Court has made clear that “a federal court has no authority ‘to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'” Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (internal citation omitted). Accordingly, “[a]n issue is moot when it no longer presents a live controversy with respect to which the court can give meaningful relief.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotation marks omitted). Questions of justiciability are not answered “simply by looking to the state of affairs at the time the suit was filed. Rather, the Supreme Court has made clear that the controversy ‘must be extant at all stages of review, not merely at the time the complaint is filed.'” Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189-90 (11th Cir. 2011) (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).

         As noted above, Respondent has informed the Court in his Response that Long has been released from ICE's custody. As Long only requests his release from the custody of ICE in his Petition and he has been released from ICE's custody, there is no longer a “live controversy” over which the Court can give meaningful relief. Friends of Everglades, 570 F.3d at 1216. Accordingly, the Court should DISMISS as moot Long's Petition for Writ of Habeas Corpus.

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Long leave to appeal in forma pauperis. Though Long has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in the Court's order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal is filed”). An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or argument is frivolous when it appears the factual allegations are clearly baseless or the legal theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9, 2009).

         Given the above analysis of Long's Petition and Respondent's Response, there are no non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus, the Court should DENY in forma pauperis status on appeal.

         CONCLUSION

         Based on the foregoing, I RECOMMEND that the Court DISMISS as moot Long's Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), DIRECT the Clerk of Court to CLOSE ...


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