Opinion
NO. 3-04-CV-1980-B.
January 21, 2005
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner John Nyakundi Omari, appearing pro se, has filed an application for writ of habeas corpus challenging his mandatory detention in immigration custody pending removal. For the reasons stated herein, the application should be dismissed as successive.
I.
Petitioner, a native and citizen of Kenya, entered the United States as an immigrant in 1990. (Resp. Ans., Exh. 1). On May 28, 1998, petitioner was convicted by a Minnesota state court of domestic assault and placed on probation for two years. ( Id., Exh. 2). While on probation, petitioner was indicted by a federal grand jury in the Eastern District of Texas for conspiracy to commit interstate transportation of stolen property. ( Id., Exh. 4). The indictment alleged that petitioner and five co-conspirators participated in a scheme to sell and issue stolen airline tickets valued at more than $600,000. ( Id.). On October 23, 2001, following his plea of guilty, petitioner was sentenced to six months confinement and ordered to make restitution in the amount of $16,336.48. ( Id., Exh. 5). The next day, the Immigration and Naturalization Service ("INS") initiated removal proceedings against petitioner based on his 1998 domestic assault conviction. ( Id., Exh. 1). Petitioner was not detained at that time. ( Id., Exh. 6). However, on November 6, 2002, the INS lodged additional charges against petitioner alleging that he was subject to removal for having committed an aggravated felony. ( Id., Exh. 7). Petitioner was taken into INS custody and held without bond pending a removal hearing. ( Id.).
Section 237(a)(2)(iii) of the INA provides, in pertinent part:
Any alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
* * * *
Any alien who is convicted of an aggravated felony at any time after admission is deportable.8 U.S.C. § 1227(a)(2)(iii). A conspiracy involving fraud where the loss to the victim exceeds $10,000 is an "aggravated felony." Id. § 1101(a)(43)(M)(i) (U).
On March 26, 2003, an immigration judge ordered petitioner removed to Kenya based on his 2001 federal conviction. ( Id., Exh. 9). The judge also determined that petitioner was ineligible for bond under section 236(c) of the Immigration and Nationality Act ("INA") because he had been convicted of an aggravated felony. Petitioner appealed the removal order to the Board of Immigration Appeals ("BIA"). ( Id., Exh. 10). While his administrative appeal was pending, petitioner filed an application for writ of habeas corpus in federal district court. As grounds for relief, petitioner argued that his detention was not authorized by section 236(c) and that his mandatory detention without an individualized bail hearing violated due process. ( Id., Exh. 11). The district court denied habeas relief based on Demore v. Kim, 530 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003). Omari v. Estrada, 2003 WL 21355891 (N.D. Tex. Jun. 5, 2003), rec. adopted, 2003 WL 21518013 (N.D. Tex. Jun 30, 2003).
Section 236(c) of the INA provides:
The Attorney General shall take into custody any alien who —
(A) is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,
(B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title,
(C) is deportable under section 1227(a)(2)(A)(i) of this title on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or
(D) is inadmissible under section 1182(a)(3)(B) of this title or deportable under section 1227(a)(4)(B) of this title, when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.8 U.S.C. § 1226(c)(1). Under this statute, the Attorney General is required to detain deportable criminal aliens until a final order of removal is issued. While the INA does not specifically define "criminal alien," "it applies mainly to aliens convicted of `aggravated felonies' or [to designated offenses] . . . involving moral turpitude." See Stephens v. Estrada, 2003 WL 21499323 at *1 (N.D. Tex. Jun. 19, 2003), quoting S. REP. No. 104-48, 104th Cong., 1st Sess. (1995) at 4.
In Demore, the Supreme Court held that the mandatory detention of permanent resident aliens without an individualized bail determination does not violate due process. A majority of the Court concluded that mandatory detention "necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed." Demore, 123 S.Ct. at 1720.
On November 3, 2003, the BIA affirmed the removal order without opinion. In re Omari, No. A28-989-663 (BIA Nov. 3, 2003). Petitioner timely filed a petition for review in the Fifth Circuit. That petition remains pending. Omari v. Ashcroft, No. 03-61014. On September 10, 2004, petitioner returned to federal court to seek habeas relief for a second time. Although his latest pleading is more developed, petitioner makes essentially the same arguments that were raised in the first habeas case — he is not subject to mandatory detention under section 236(c) and the statute is unconstitutional on its face and as applied to him. Respondents have filed a combined answer and motion to dismiss. The issues have been fully briefed by the parties and this matter is ripe for determination.
II.
Respondents initially argue that this case should be dismissed under 28 U.S.C. § 2244 because petitioner has neither sought nor obtained leave from a three-judge panel of the court of appeals to file a successive application for writ of habeas corpus. Section 2244, which is part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides, in pertinent part:
(a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless —
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(a) (b) (emphases added). By its terms, the "gatekeeping" provisions of section 2244 apply only to prisoners who are in custody pursuant to a federal or state conviction. See, e.g., Rosales-Garcia v. Holland, 322 F.3d 386, 398-99 (6th Cir.), cert. denied, 123 S.Ct. 2607 (2003); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000). The statute does not apply to criminal aliens who, like petitioner, challenge the propriety of their detention in a habeas corpus proceeding under 28 U.S.C. § 2241. See Rosales-Garcia, 322 F.3d at 399.
Nevertheless, a district court is not required to entertain a second or successive application for habeas relief from the same prisoner. Long before the AEDPA, the Supreme Court held that "[c]ontrolling weight may be given to denial of a prior application for federal habeas corpus . . . relief only if: (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application; (2) the prior determination was on the merits; and (3) the ends of justice would not be served by reaching the merits of the subsequent application." Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963); see also Rosales-Garcia, 322 F.3d at 399 (applying Sanders to successive section 2241 petition challenging preremoval detention). The first two prongs of the Sanders test are easily satisfied here. Petitioner presented the same constitutional challenges to section 236(c) in his first habeas case and his claims were rejected on the merits. Omari, 2003 WL 21355891 at *1. Therefore, in order to avoid dismissal of this successive writ, petitioner must show that "the ends of justice would be served by permitting the redetermination of the ground." Sanders, 83 S.Ct. at 1078. Petitioner attempts to meet this heavy burden by arguing that Demore "left open the question of whether mandatory detention under [section 236(c)] is consistent with due process when a detainee makes a colorable claim that he is not in fact deportable as charged." (Pet. Hab. Br. at 24-25). Contrary to petitioner's argument, Demore does not create an exception for detainees subject to mandatory detention who may have a "good faith" basis for challenging their removal. Nor has petitioner made a colorable claim that he is not subject to removal as an aggravated felon. Consequently, petitioner is barred from relitigating the constitutional validity of section 236(c) in a successive writ.
Subsequent cases require prisoners to show "cause" for failing to raise their claim in an earlier proceeding and "actual prejudice" resulting from the error. See Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992); McClesky v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). However, as noted by the Sixth Circuit in Rosales-Garcia, it is not clear whether this "cause and prejudice" test applies to detainees who are not challenging a criminal conviction under state or federal law. See Rosales-Garcia, 322 F.3d at 399 n. 15. If this requirement does apply to petitioner, he has failed to show an intervening change in the law or any other "cause" to warrant consideration of a successive writ.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed as successive.