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Ramirez v. Dozier

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

September 19, 2017

DANIEL CONTRERAS RAMIREZ, Petitioner,
v.
GREGORY C. DOZIER, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA.

         Petitioner Daniel Contreras Ramirez (“Ramirez”), who is currently housed at Coffee Correctional Facility in Nicholls, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Motion to Dismiss contending that this Court does not have jurisdiction to hear Ramirez's claims. (Doc. 17.) For the reasons which follow, I RECOMMEND that the Court GRANT Respondent's Motion, DISMISS Ramirez's Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Ramirez in forma pauperis status on appeal.

         BACKGROUND

         Ramirez was indicted in the Superior Court of Forsyth County, Georgia of two counts of rape, one count of aggravated sexual battery, and two counts of child molestation. (Doc. 18-1, pp. 2-4.) Pursuant to a negotiated plea agreement, he pleaded guilty to one count of rape and the State dismissed the other counts against him. (Id. at pp. 7-9.) On October 3, 2013, the Superior Court sentenced him to life with the first twenty-five years to be served in confinement and the remainder to be served on probation. (Id.) He is currently serving this state sentence at Coffee Correctional Facility.

         Ramirez brought this action against the United States of America and others. Ramirez seeks to have the Court compel the Department of Homeland Security (“DHS”) and the Department of Immigration Services to commence proceedings to have him deported to Mexico, his home country. (Doc. 1.) Ramirez contends that he is an illegal alien that has been convicted of an aggravated felony and that he is, therefore, deportable. (Id.) The Court originally served Ramirez's Petition on the federal entities he named as respondents. However, because Ramirez brought this action as a habeas corpus Petition, the Court later vacated that order and ordered that the Petition be served upon the Commissioner of the Georgia Department of Corrections. (Doc. 12, pp. 2-3 (explaining that the only proper respondent in a habeas action is the officer having custody of the petitioner and that the Commissioner is the state officer in charge of Georgia's penal institutions, including Coffee Correctional Facility, a privately-run contract facility).)

         Respondent Commissioner then filed a Motion to Dismiss contending that the Court has no jurisdiction to entertain Ramirez's request for a deportation proceeding. (Doc. 17.) In his Response to that Motion, Ramirez contends that the Commissioner is not the proper respondent to his Petition. (Doc. 19.) Ramirez reiterates his claim that he is subject to deportation under the Immigration and Nationality Act. (Id.) Ramirez explains that DHS has served him with a Notice of Intent to Issue a Final Administrative Removal Order which he attaches to his Response. (Doc. 19-1, pp. 1-2.)

         DISCUSSION

         I. Whether this Court has Jurisdiction to Hear Ramirez's Request

         This Court, like all district courts of the United States, is a Court of “limited jurisdiction.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). It possesses only that power authorized by the Constitution and by Congress. Id. Moreover, Plaintiff bears the burden of establishing that his claims fall within this Court's subject matter jurisdiction. Kokkonen, 511 U.S. at 377 (because federal courts are courts of limited jurisdiction “[i]t is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]”).

         Ramirez has provided no jurisdictional basis upon which this Court can entertain his Petition. He originally indicated that he brought this case as a habeas petition. However, habeas actions, explicitly or by necessary implication, challenge a prisoner's conviction or the sentence imposed on him by a court (or under the administrative system implementing the judgment). Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, for example, when a prisoner makes a claim that, if successful, could shorten or invalidate his term of imprisonment, the claim must be brought as a habeas petition. See, e.g., Edwards v. Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477 (1994). Ramirez explicitly admits that he is not attacking his conviction or sentence.

         Moreover, the only proper Respondent to a habeas petition is the officer having custody of Ramirez, and Ramirez remains in the custody of state officials at Coffee Correctional Facility due to his state convictions. Ramirez admits that the state officer having custody of him does not have the ability to afford him the relief he requests, a deportation proceeding.[1] Thus, his claims are not cognizable under Section 2241 or 2255. See Orozco, 911 F.2d at 541 (because petitioner is not in custody of federal immigration officers, he cannot procced under Section 2241).

         Ramirez also frequently cites the Immigration and Nationality Act in his pleadings. However, the Eleventh Circuit has held that the Immigration and Nationality Act does not provide an incarcerated alien with a cause of action to compel the federal government to commence deportation proceedings. Orozco, 911 F.2d at 541 (“To the extent that [petitioner's] statements . . . could be construed as seeking a private right of action under section 1252(i) to require the Attorney General to begin deportation proceedings, this court concurs in the conclusion by the Eighth Circuit in Gonzalez v. United States Immigration & Naturalization Service, 867 F.2d 1108, 1109-10 (8th Cir.1989), that an incarcerated alien has no private right of action under section 1252(i).”). Moreover, as another court explained:

Although 8 U.S.C. § 1231(a)(4)(B) authorizes the Attorney General to remove an alien in accordance with applicable procedures prior to the alien completing his sentence of imprisonment, it does not impose any obligation to do so. See 8 U.S.C. § 1231(a)(4)(B). As specifically stated in 8 U.S.C. § 1228, “[n]othing in this section shall be construed as requiring the Attorney General to effect the removal of any alien sentenced to actual incarceration, before release from the penitentiary or correctional institution where such alien is confined.”

Gonzalez-Hernandez v. Holder, No. 3:12-CV-318 JCH, 2012 WL 1900029, at *1 (D. Conn. May 24, 2012).[2]See also Roberts v. INS, 372 F. App'x 921 (11th Cir. 2010) (alien could not compel DHS, through petition for writ of habeas corpus, to provide immediate disposition of deportation proceedings upon filing ...


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