Opinion
00 CIV. 6151 (DLC)
December 21, 2000.
Donovan Amos, Pro Se, for Petitioner.
Aaron M. Katz, Assistant United States Attorney, for Respondent.
OPINION AND ORDER
On August 17, 2000, Donovan Amos ("Amos") applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking an order that he be released from the custody of the United States Immigration and Naturalization Service ("INS") pending the completion of administrative proceedings seeking petitioner's removal to his native Jamaica. On November 2, 2000, Magistrate Judge Pitman issued a Report and Recommendation ("Report") that this petition be dismissed. Based on the analysis which follows, this petition is dismissed.
The petition was received by the Court's Pro Se Office on August 2, 2000, but was not filed until August 17, 2000.
BACKGROUND
Amos is a native of Jamaica and a legal permanent resident of the United States, first admitted to the United States in 1988. In 1994, petitioner was convicted of Criminal Sale of a Controlled Substance in the Third Degree and sentenced to 40 months to 10 years' imprisonment. In February 1996, he was released on parole which terminates in 2004.
In February 2000, the petitioner sought admission into the United States at JFK International Airport, as a returning legal permanent resident. He was subsequently taken into custody by the INS and removal proceedings were commenced against him pursuant to Sections 212(a)(2)(A)(i)(II) and 212(a)(6)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II) and 1182(a)(6)(C)(i). Petitioner was transported to an INS facility in Atlanta, Georgia, based on the INS determination that New York lacked available bed space. He was denied bail and remains in INS custody pending the completion of those proceedings.
On July 24, 2000, Amos filed a petition identical to the petition filed in this Court in the United States District Court for the Northern District of Georgia (the "Georgia Action"). The petition in the Georgia Action asserted the same claims and requested the same relief as the petition to this Court. Respondents filed a response in that action on October 13. 2000, addressing the merits of Amos' claims.
Amos filed his petition in this Court on August 17, 2000, and filed a supplement to this petition which was received by Magistrate Judge Pitman on October 25, 2000, and filed on November 8, 2000. Respondents submitted a response to Magistrate Judge Pitman, which was received on October 27, 2000, and filed on November 8, 2000. On November 2, 2000, Magistrate Judge Pitman issued a Report recommending that the petition be dismissed without prejudice in favor of the identical petition pending in the Georgia Action. No objections to the Report have been filed.
Pursuant to an Order by this Court on August 31, 2000, petitioner had 30 days from the date on which he was served with respondents' answer to file a response. While Magistrate Judge Pitman issued his Report in advance of that date, he represented to this Court that, based on his findings in the Report and its procedural basis, he did not anticipate that any reply would alter his recommendation. The time for petitioner to respond has since elapsed and nothing has been filed with this Court.
DISCUSSION
In reviewing the Report, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court shall make a de novo determination of those portions of the report to which objections are made. Id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)
It is a well-settled principle in this Circuit that where there are "two competing lawsuits, the first suit should have priority, absent the showing of balance of convenience or special circumstances giving priority to the second." Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir. 1991) (internal quotations omitted); see also Citigroup Inc. v. City Holding Co., 97 F. Supp.2d 549, 555 (S.D.N.Y. 2000). It is the court in which the first-filed action was brought that should decide whether one of the exceptions applies. Invivo Research, Inc. v. Magnetic Resonance Equipment Corp., No. 99 Civ. 11863 (RWS), 2000 WL 1670927, *7 (S.D.N Y Nov. 6, 2000)
The Georgia Action was commenced prior to the instant action, and the merits in the Georgia Action have already been briefed. Magistrate Judge Pitman's Report recommended, in the interests of judicial economy and the Court's interest in avoiding inconsistent adjudications, that the instant petition be dismissed without prejudice. Reviewing the Report for facial error, and finding none, the recommendation of the Report is adopted.
CONCLUSION
For the reasons stated, the petition for a writ of habeas corpus is dismissed without prejudice to the Georgia Action. The Clerk of Court shall close the case.
I further decline to issue a certificate of appealability. The petitioner having made no objections to the Report, and the Report having advised petitioner that failure to object will preclude appellate review of this Opinion and Order, the petitioner has waived his right to appeal. United States v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997); Small v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)