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Hydara v. Sessions

United States District Court, N.D. Georgia, Atlanta Division

May 8, 2018

HAJI KABBA HYDARA, Petitioner,
v.
JEFF SESSIONS et al., Respondents.

         HABEAS CORPUS 28 U.S.C. § 2241

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE.

         Petitioner, Haji Kabba Hydara, confined in the Atlanta City Detention Center in Atlanta, Georgia, submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Doc. 1.] Petitioner paid the $5.00 filing fee. [See Dkt. Entry Apr. 26, 2018.]

         The matter is before the Court for preliminary review of the petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases, which also applies to Section 2241 actions, as provided in Rule 1(b). Summary dismissal of a habeas petition under Rule 4 is proper when the petition and the attached exhibits plainly reveal that relief is not warranted. See McFarland v. Scott, 512 U.S. 849, 856 (1994) (stating that Rule 4 dismissal is appropriate when petition “appears legally insufficient on its face”). For the reasons discussed below, the undersigned RECOMMENDS that the petition be DISMISSED WITHOUT PREJUDICE.

         I. Discussion

         Petitioner, a citizen of The Gambia, entered the United States in January 2000. [Doc. 1 at 1.] In September 2010, Petitioner was (1) convicted of possessing and selling marijuana, and (2) sentenced to twenty years of imprisonment, suspended after ten years. [Id. at 2.] However, Petitioner was released from prison in April 2014. [Id.] Petitioner was then detained by Immigration and Customs Enforcement (ICE) until July 2014. [Id.] Petitioner was released from detention because ICE “could not secure his travel documents from The Gambia embassy.” [Id.] Petitioner subsequently attempted to secure those documents himself, but was unsuccessful. [Id. at 2, 5-6.]

         On November 8, 2017, Petitioner surrendered to ICE. [Id. at 2.] Petitioner executed his § 2241 petition on April 16, 2018, and postmarked it on April 24, 2018. [Id. at 9; Doc. 1-2 at 2.] Petitioner seeks release because his detention has lasted “for over [five] months without ICE being able to secure his travel documents.” [Doc. 1 at 2, 9.]

         “[W]hen an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days . . . .” 8 U.S.C. § 1231(a)(1)(A). “Federal law authorizes aliens removable for violations of criminal law . . . to be detained beyond the ordinary 90-day removal period.” Akinwale v. Ashcroft, 287 F.3d 1050, 1051 (11th Cir. 2002) (per curiam) (citing 8 U.S.C. § 1231(a)(6)).

         “The Supreme Court has concluded that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention. Zadvydas v. Davis, 533 U.S. 678, 688 . . . (2001).” Id. at 1051 n.1 (internal quotation marks omitted). “The Supreme Court . . . confirmed that six months is a presumptively reasonable period to detain a removable alien awaiting deportation [for violations of criminal law. Zadvydas, 533 U.S. at 701.[ ] . . . This six-month period . . . must have expired at the time [when the] § 2241 petition was filed in order to state a claim under Zadvydas.” Id. at 1051-52 (footnotes omitted).

         In the present case, Petitioner surrendered to ICE on November 8, 2017, and the six-month period specified in Zadvydas expired on May 8, 2018. Petitioner executed his § 2241 petition on April 16, 2018, and postmarked it on April 24, 2018. Petitioner filed his § 2241 petition too early. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001) (per curiam) (explaining that filing occurs on date of submission for mailing). Therefore, Petitioner fails to state a claim under Zadvydas, and the § 2241 petition should be dismissed without prejudice.

         II. Conclusion

         For the reasons stated above, IT IS RECOMMENDED that the § 2241 petition, [Doc. 1], be DISMISSED WITHOUT PREJUDICE. The undersigned offers no recommendation regarding a certificate of appealability (COA) because 28 U.S.C. § 2253(c)(1) does not apply to Petitioner.[1]

         The Clerk is DIRECTED to terminate the referral to the undersigned.

         IT IS SO ...


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