Opinion
No. CV 18-02261-PHX-JAT (JZB)
12-11-2018
Samuel Petrie Martinez, Petitioner, v. Jefferson B. Sessions, III, et al., Respondent.
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT COURT JUDGE:
Petitioner Samuel Petrie Martinez filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (Doc. 1.) After prior criminal convictions, Petitioner was removed from the United States in 1997, 2003, and 2005. On March 8, 2018, he was arrested and subsequently charged with Illegal Reentry. After the government moved to dismiss that case, Petitioner was transferred to the custody of the Department of Immigration and Customs Enforcement ("ICE"). There, he was detained pending removal pursuant to a prior removal order. Petitioner requested relief from this Court arguing that he was not subject to detention and removal. However, Petitioner has been released from custody and removed from the United States. (Doc. 12-1, Ex. D, at 25.) Therefore, the Petition is now moot.
I. Procedural History.
A. Petitioner's Arrest.
On January 27, 1975, Petitioner, a citizen of Mexico, was admitted to the United States as a lawful permanent resident ("LPR"). (Doc. 12 at 1-2.)
On February 24, 1994, Petitioner pleaded guilty to violating Arizona Revised Statute (A.R.S.) § 13-3408, "Possession, use, administration, acquisition, sale, manufacture or transportation of narcotic drugs." The Maricopa County Superior Court sentenced him to 12 months' imprisonment. (Id. at 2.)
After Petitioner's release from state custody, the government charged him with being removable under INA §§ 237(a)(2)(A)(iii) and (B)(i). As a result of those proceedings, an IJ issued a final order of removal, and the Government removed Petitioner to Mexico on July 7, 1997. (Doc. 12-1, Ex. A, at 2.)
Petitioner was convicted in 2003 and 2006 for Illegal Re-Entry into the United States, and was removed to Mexico in 2005 and 2007 pursuant to a Reinstated Final Order of Removal. (Doc 12-1, Ex. B, at 13-14, 17.)
Petitioner's criminal history contains other convictions and is detailed in the Presentence Report of CR 18-00608-PHX-SPL.
On March 8, 2018, ICE authorities again encountered Petitioner within the United States. (Id.) On March 8, 2018, ICE detained Petitioner and issued him a Notice of Intent to Reinstate Order of Removal, which Petitioner signed. (Doc. 12-1, Ex. C, at 20.) He was also charged with criminal reentry in violation of 8 U.S.C. § 1326(a). See United States v. Petrie-Martinez, CR 18-00608-PHX-SPL (D. Ariz.). On May 24, 2018, United States District Court Judge Steven P. Logan, in Petitioner's criminal case, granted the government's motion "in the interest of justice" to dismiss without prejudice and dismissed the indictment. (Doc. 1 at 5; CR Doc. 18-00608-PHX-SPL - Doc. 18 at 1.)
B. Removal Action.
On May 25, 2018, Petitioner was transferred to ICE custody. (Id.)
C. Habeas Petition.
On July 17, 2018, Petitioner filed the Petition "challenging the constitutionality of his prolonged, indefinite detention at the hands of officials of the Department of Homeland Security and its contractors." (Doc. 1 at 2.) Petitioner requested that he be released from custody immediately if the Court finds that the government has no authority to detain him. (Id. at 10.) If the Court has authority to detain him, Petitioner requests a bond hearing within 30 days of the Court's order. (Id.) The Court summarized his argument:
In his § 2241 Petition, Petitioner claims that he is being detained in violation of the Due Process Clause of the Fifth Amendment. (Id. at 7.) He seeks immediate release, or, alternatively, a bond hearing. (Id. at 9.) Petitioner asserts that he was arrested without a warrant and has never been advised of the reasons for his arrest and detention. (Id. at 6-7.) He asserts that he is not subject to expedited, administrative, or stipulated removal. (Id. at 6.) He has not been issued a Notice to Appear, and thus has not been placed in formal removal proceedings. (Id.) He has not been provided with a custody redetermination hearing and contends that he is not subject to mandatory detention because his state court offense is not a removable offense listed under 8 U.S.C. § 1226(c)(1). (Id. at 7-8.)(Doc. 6 at 2-3.)
D. Petitioner's Removal.
On August 27, 2018, Respondents filed a Notice, which submitted competent evidence showing that, on August 2, 2018, ICE officials caused Petitioner to be removed from the United States. (Doc. 12-1, Ex. D, at 25.)
II. The Petition is Moot.
The Court may grant a writ of habeas corpus to a detainee who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). 8 U.S.C. § 1231 governs the detention of aliens whose order of removal is administratively final. "The case or controversy requirement of Article III admonishes federal courts to avoid premature adjudication and to abstain from entangling themselves in abstract disagreements." U.S. West, Inc. v. Tristani, 182 F.3d 1202, 1208 (10th Cir. 1999) (internal quotation marks and citations omitted). The Court must dismiss a case as moot if, at any point, it becomes certain either that "'the allegedly wrongful behavior could not reasonably be expected to recur,'" Friends of the Earth Inc. v. Laidlaw Environmental Assoc. (TOC), Inc., 528 U.S. 167 (2000) (citation omitted), or that there is no effective relief remaining for the court to provide. See Calderon v. Moore, 518 U.S. 149, 150 (1996). The case or controversy requirement warrants a finding of mootness if: (1) the petitioner has received the relief requested in the petition; or (2) the court is unable to provide the petitioner with the relief sought. Munoz v. Rowland, 104 F.3d 1096, 1097-98 (9th Cir. 1997). The Court does not have subject matter jurisdiction to consider a habeas claim that is moot. See, e.g., McCullough v. Graber, 726 F.3d 1057, 1060 (9th Cir. 2013).
Here, Petitioner sought release from detention, but he is no longer detained. Petitioner's case is rendered moot because there is no case or controversy. See Spencer v. Kemna, 523 U.S. 1 (1998) ("[M]ootness, however it may have come about, simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so. We are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong."); Abdala v. INS, 488 F.3d 1061, 1064-65 (9th Cir. 2007) (discussing and collecting cases wherein a petitioner's release from detention or parole or their removal rendered a habeas petition moot); Mensah-Yawson v. Lowe, No. 3:16-cv-200, 2016 WL 3704878, *1 (M.D. Pa. July 12, 2016) ("[T]he habeas petition challenges petitioner's continued detention pending removal. Because petitioner has since been released from ICE custody and removed from the United States, the petition no longer presents an existing case or controversy. Accordingly, the instant habeas corpus petition will be dismissed as moot.").
III. CONCLUSION
Petitioner seeks release from confinement. Because Petitioner is no longer in custody and has been removed from the United States, his Petition is moot.
Accordingly,
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED and DISMISSED WITH PREJUDICE.
The Petition should be dismissed with prejudice. See Abdala, 488 F.3d at 1065 ("Abdala's attempt to amend his habeas petition after his deportation could not revive his petition. He sought to file an amended petition . . . after he was released from custody and deported to Somalia. As Abdala was no longer 'in custody' within the meaning of [the habeas statute] when he attempted to amend his petition, his petition was moot and there was nothing to amend."); Noyola v. DHS, No. SA CV 15-00544-JCG, 2015 WL 3644006 (C.D. Cal. June 8, 2015) ("Petitioner's removal renders the instant Amended Petition moot. . . . Hence, the Amended Petition does not present a live controversy and must be dismissed with prejudice[.]") (emphasis added). --------
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Dated this 11th day of December, 2018.
/s/_________
Honorable John Z. Boyle
United States Magistrate Judge