Opinion
FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION AS MOOT (Doc. 9)
SHEILA K. OBERTO, Magistrate Judge.
At the time the petition was filed, Petitioner was being detained by the Immigration and Naturalization Service (INS) and proceeded with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to the jurisdiction of the United States Magistrate Judge to conduct all further proceedings in the case, including the entry of final judgment, by manifesting consent in a signed writing filed by Petitioner on May 13, 2010 (doc. 4). However, Respondent has not responded to the Court's order of November 1, 2010, directing Respondent to consent or decline consent to the Magistrate Judge's jurisdiction to enter judgment. Accordingly, the matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
Pending before the Court is the Respondent's motion to dismiss, which was filed on October 7, 2010, in which Respondent seeks to have dismissed as moot Petitioner's petition, which was filed on May 18, 2010. The twenty-one-day period for filing opposition pursuant to Local Rule 230(l) has passed, but Petitioner has not filed any opposition to the motion to dismiss.
I. Background
Petitioner alleged that he is a native of Sierra Leone who was ordered deported to Sierra Leone and who had been unlawfully and indefinitely detained at the Kern County Jail, Lerdo Facility, after having been ordered removed from the United States on April 28, 2009, and having been in custody since May 2008. (Pet. 2-3.) Petitioner alleged that he was neither awaiting trial nor serving a sentence on any state or federal criminal case. (Pet. 3.) He argued that pursuant to Zadvydas v. Davis , 533 U.S. 678, 690, 699-700 (2001), he was entitled to relief because there was no significant likelihood that removal would occur in the reasonably foreseeable future. (Pet. 3.) Petitioner contended that his continued, indefinite detention under 8 U.S.C. § 1231(a)(6) exceeded Respondent's statutory authority to detain him and violated the Due Process Clause of the Fifth Amendment. (Pet. 4.) Petitioner sought release from INS custody under reasonable conditions of supervision. (Pet. 5.)
Respondent submitted in connection with the motion to dismiss an executed warrant of removal, which was effected on July 19, 2010, by air from the port of New York, New York. (Doc. 12, Att. A [doc. 12-1] pp. 1-3.) Respondent also submitted a copy of Immigration Enforcement Agent April Jacques' memorandum to file regarding having been accompanied by IEA Resurreccion while escorting Petitioner from the United States via the JFK Airport on a Royal Air Maroc Airlines Flight on July 19, 2010.
Further, the Court notes that the docket reflects that the Court's order of November 3, 2010, permitting further documentation in support of the motion to dismiss and a response thereto, was mailed to Petitioner in custody and was returned on November 8, 2010, as "undeliverable, not in custody."
II. Proceeding by a Motion to Dismiss
Title 28 U.S.C. § 2241 provides that writs of habeas corpus may be granted by a district court within its jurisdiction only to a prisoner whose custody is within enumerated categories, including but not limited to custody under the authority of the United States or custody in violation of the constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(a), (c)(1) and (3).
A district court must award a writ of habeas corpus or issue an order to show cause why it should not be granted unless it appears from the application that the applicant is not entitled thereto. 28 U.S.C. § 2243. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (Habeas Rules) is applicable to proceedings brought pursuant to § 2241. Habeas Rule 1(b). Habeas Rule 4 permits the filing of "an answer, motion, or other response, " and thus it authorizes the filing of a motion in lieu of an answer in response to a petition. Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 Amendments. This gives the Court the flexibility and discretion initially to forego an answer in the interest of screening out frivolous applications and eliminating the burden that would be placed on a respondent by ordering an unnecessary answer. Advisory Committee Notes, 1976 Adoption. Rule 4 confers upon the Court broad discretion to take "other action the judge may order, " including authorizing a respondent to make a motion to dismiss based upon information furnished by respondent, which may show that a petitioner's claims suffer a procedural or jurisdictional infirmity, such as res judicata, failure to exhaust state remedies, or absence of custody. Id.
The Supreme Court has characterized as erroneous the view that a Rule 12(b)(6) motion is appropriate in a habeas corpus proceeding. See, Browder v. Director, Ill. Dept. of Corrections , 434 U.S. 257, 269 n. 14 (1978). However, in light of the broad language of Rule 4, it has been held in this circuit that motions to dismiss are appropriate in cases that proceed pursuant to 28 U.S.C. § 2254 and present issues of failure to exhaust state remedies, O'Bremski v. Maas , 915 F.2d 418, 420 (9th Cir. 1990) (a motion to dismiss for failure to raise any issue of federal law, which was based on the insufficiency of the facts as alleged in the petition to justify relief as a matter of law, was evaluated under Rule 4); White v. Lewis , 874 F.2d 599, 602-03 (9th Cir. 1989) (procedural default in state court); Hillery v. Pulley , 533 F.Supp. 1189, 1194 n.12 (E.D.Cal. 1982) (a motion to dismiss for failure to exhaust state remedies is appropriately considered after receipt of evidence pursuant to Rule 7(a) to clarify whether or not the possible defect, not apparent on the face of the petition, might preclude a hearing on the merits, and after the trial court has determined that summary dismissal is inappropriate).
Here, Respondent's motion to dismiss is based on mootness. Respondent's motion is similar in procedural posture to a motion to dismiss for failure to exhaust state remedies or for state procedural default. Further, the motion is unopposed; in the context of the facts alleged in the petition and reflected in Respondent's moving papers, the motion does not raise material factual disputes. Finally, Respondent has not yet filed a formal answer.
The Court therefore exercises its discretion to review Respondent's motion pursuant to its authority under Habeas Rule 4.
III. Analysis
Title 28 U.S.C. § 2241 confers habeas corpus jurisdiction upon the Court to hear this case. Zadvydas v. Davis , 533 U.S. 678, 687-88.
However, where a Court is without power to grant the relief requested, then the case is moot. Picrin-Peron v. Rison , 930 F.2d 774, 775 (9th Cir. 1991) (petition for habeas corpus seeking release form allegedly unlawful, indefinite detention was moot where the government paroled the petitioner). Where a petitioner who seeks release has been released under circumstances where there is no reasonable likelihood that the alleged wrong will recur, the petition is moot and will be dismissed. Picrin-Peron v. Rison , 930 F.2d 773, 776.
Here, the release sought by Petitioner was release from the custody of the INS. Respondent has demonstrated that Petitioner has been released from INS custody.
Federal courts lack jurisdiction to decide cases that are moot because the courts' constitutional authority extends to only actual cases or controversies. Iron Arrow Honor Society v. Heckler , 464 U.S. 67, 70-71 (1983). Article III requires a case or controversy in which a litigant has a personal stake in the outcome of the suit throughout all stages of federal judicial proceedings and has suffered some actual injury that can be redressed by a favorable judicial decision. Id . A petition for writ of habeas corpus becomes moot when it no longer presents a case or controversy under Article III, § 2 of the Constitution. Wilson v. Terhune , 319 F.3d 477, 479 (9th Cir. 2003). A petition for writ of habeas corpus is moot where a petitioner's claim for relief cannot be redressed by a favorable decision of the court issuing a writ of habeas corpus. Burnett v. Lampert , 432 F.3d 996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna , 523 U.S. 1, 7 (1998)). Mootness is jurisdictional. See, Cole v. Oroville Union High School District , 228 F.3d 1092, 1098-99 (9th Cir. 2000). Thus, a moot petition must be dismissed because nothing remains before the Court to be remedied. Spencer v. Kemna , 523 U.S. 1, 18 (1998).
The Court concludes that the petition is moot and must be dismissed.
IV. Disposition
Accordingly, it is RECOMMENDED that:
1) Respondent's motion to dismiss the petition as moot be GRANTED; and
2) The petition for writ of habeas corpus be DISMISSED as moot; and
3) The Clerk be DIRECTED to close the action.
These findings and recommendations are submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within fourteen (14) days (plus three (3) days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.