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