United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT
Weidong Zhao (“Zhao”), 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 Zhao's Petition,
DIRECT the Clerk of Court to
CLOSE this case, and DENY
Zhao in forma pauperis status on appeal.
filed his Petition on May 10, 2017. (Doc. 1.) Zhao asserts he
unsuccessfully attempted to enter the United States as an
émigré. (Id.) He states he has been in
ICE's custody as an alien subject to a final order of
removal since April 8, 2016. He claims he has not been
deported within the ninety (90) day period prescribed by
Zhao 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. 6-7.) Thus, Zhao requested
release from ICE custody.
26, 2017, Respondent filed his Response to Zhao's
Petition. Respondent maintains Zhao was released from
ICE's custody, pending removal under terms of
supervision, on July 19, 2017. (Doc. 9, p. 1.) Indeed, the
Court's show cause Order was returned to the Court as
undeliverable to Zhao because he is no longer at ICE's
processing center in Folkston. (Doc. 8.) Thus, Respondent
asserts Zhao's release from ICE custody renders his
Petition moot, and his Petition should be dismissed.
I. Whether Zhao's Petition is Moot
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 Zhaoer 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)).
noted above, Respondent has informed the Court in his
Response that Zhao has been released from ICE's custody.
As Zhao 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 Zhao's Petition
for Writ of Habeas Corpus.
Leave to Appeal in Forma Pauperis
Court should also deny Zhao leave to appeal in forma
pauperis. Though Zhao 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,
the above analysis of Zhao'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.
on the foregoing, I RECOMMEND that the Court
DISMISS as moot Zhao's Petition for Writ
of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241,
(doc. 1), DIRECT the Clerk of Court to