Opinion
3:23-cv-31-KAP
09-19-2023
OSVALDO BARBOSA DE OLIVEIRA, Petitioner v. LEONARDO ODDO, Warden, Moshannon Valley Processing Center, Respondent, MERRICK GARLAND, ALEJANDRO MAYORKAS, Nominal Respondents
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
RECOMMENDATION
Petitioner, a national of Brazil briefly detained in the custody of the Department of Homeland Security at the Moshannon Valley Processing Center, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.§ 2241. ECF no. 1. Petitioner filed the petition in February 2023 in the Middle District of Pennsylvania, and because Moshannon Valley is in this district, that Court transferred the matter here. After review of the Response, ECF no. 17, I recommend that the petition be summarily denied with prejudice.
Report
This is filed as a Report and Recommendation because not all parties have consented to Magistrate Judge jurisdiction. Petitioner, in conclusory fashion, asserts that some representative of the DHS told him they “lost” his “documents.” He asserts that as a result he cannot be removed (apparently ever). As a result, he claims, he should be released from custody.
The first and most obvious reason to dismiss the Petition is the lack of a basis for a writ. Rule 2(c) of the Rules governing Habeas Corpus Cases under Section 2254 in the United States District Courts, 42 U.S.C.§, made applicable to habeas corpus petition under 28 U.S.C.§ 2241 by Rule 1(b), requires the petitioner to set forth all the claims he intends to present and the facts that support those claims. See also Mayle v. Felix, 545 U.S. 644, 655 (2005)(quoting with approval the Advisory Committee's Note on Habeas Corpus Rule 4, that “[N]otice pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.” (internal quotation marks omitted)). The presumption that plausible statements of fact in a complaint should be presumed true for pleading purposes has no applicability in habeas practice. Further, a habeas petition is not the opening salvo in a trial and error process of drafting a claim, nor is it a brief for the Court to begin an investigation. A habeas petition is not part of an underlying criminal proceeding where the rules are primarily structured to safeguard the petitioner, it is a civil action against petitioner's jailer, and if the petitioner cannot meet the burden of alleging and proving that his custody is wrongful the court should leave that custody undisturbed. See Ryan v. Gonzales, 568 U.S. 57, 73 (2013). I do not consider the allegation plausible that a representative of the DHS has told the petitioner that they cannot deport him (ever) because they “lost” his “documents,” much less that that assertion would be true if it had been made. This matter could have been dismissed with prejudice before service.
The Response makes it clear that the Petition, if it were adequate, is meritless. The Department of Homeland Security, Bureau of Immigration and Customs Enforcement, has been moving diligently, over petitioner's foot dragging opposition to removal (including by not keeping the Clerk up to date as to his address), to remove petitioner to Brazil. Further, petitioner's removal is currently imminently scheduled.
The Supreme Court held, in Zadvydas v. Davis, 533 U.S. 678, 689 (2001), that a foreign national subject to a removal order could not be held indefinitely when the foreign national “provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” The archetypical cases considered in Zadvydas are where the receiving country will not take the petitioner back because the United States does not have diplomatic relations or a repatriation treaty with it, or because the receiving country denies that the person to be removed is their citizen. Zadvydas has resulted in an administrative process for evaluating the continued detention of persons when the execution of a final order of removal is delayed, see 8 C.F.R.§ 241.13 (setting out the procedural framework), as well as litigation over how much evidence constitutes a “significant likelihood” of a removal order not being carried out in a reasonably foreseeable period, which Zadvydas presumed was six months. In Alexander v. Attorney General, 495 Fed.Appx. 274, 276-77 (3d Cir.2012), the Court of Appeals interpreted Zadvydas as holding that the longer the foreign national is detained, the less evidence must be provided to obtain relief.
But less evidence is not no evidence, and petitioner offers nothing except the implausible assertion that someone told him he cannot be deported (implicitly without limitation to time) because of “lost” “documents.” Second, Exhibit 1 to the Response (Declaration of Deportation Officer Coxhead) documents petitioner's lack of cooperation in the removal process and the period prescribed in Zadvydas assumes a foreign national who is attempting to comply with a final order of removal, not thwart it. See 8 U.S.C.§ 1231(a)(1)(C). And see 8 C.F.R.§ 241.13(d)(2). As the Middle District of Pennsylvania has written, “an alien who on his own causes his delay in removal by seeking and obtaining a stay of removal while he challenges his removal order ha[s] tolled the time period within which BICE can detain the alien.” Morena v. Gonzales, 2005 WL 3307100 at *6 (M.D. Pa. Oct. 4, 2005), report and recommendation adopted, 2005 WL 3277995 (M.D. Pa. Dec. 2, 2005).
Notice will be sent to where the respondent asserts petitioner is now being held pending removal. No extension of time to file objections will be granted.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties are given notice that they have fourteen days to file written objections to this Report and Recommendation. The parties are advised that in the absence of timely and specific objections any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017)(describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).