Filed: Dec. 02, 2015
Latest Update: Dec. 02, 2015
Summary: ORDER REQUIRING PETITIONER TO SUBMIT A FIRST AMENDED PETITION 30-DAY DEADLINE. ORDER DIRECTING CLERK OF COURT TO SEND PETITIONER FORM FOR HABEAS PETITION PURSUANT TO 28 U.S.C. 2241 JENNIFER L. THURSTON , Magistrate Judge . Petitioner is detained by the United States Bureau of Immigration and Customs Enforcement and is proceeding with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 2241. Preliminary review of the petition indicates that Petitioner has not provided sufficie
Summary: ORDER REQUIRING PETITIONER TO SUBMIT A FIRST AMENDED PETITION 30-DAY DEADLINE. ORDER DIRECTING CLERK OF COURT TO SEND PETITIONER FORM FOR HABEAS PETITION PURSUANT TO 28 U.S.C. 2241 JENNIFER L. THURSTON , Magistrate Judge . Petitioner is detained by the United States Bureau of Immigration and Customs Enforcement and is proceeding with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. 2241. Preliminary review of the petition indicates that Petitioner has not provided sufficien..
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ORDER REQUIRING PETITIONER TO SUBMIT A FIRST AMENDED PETITION
30-DAY DEADLINE.
ORDER DIRECTING CLERK OF COURT TO SEND PETITIONER FORM FOR HABEAS PETITION PURSUANT TO 28 U.S.C. § 2241
JENNIFER L. THURSTON, Magistrate Judge.
Petitioner is detained by the United States Bureau of Immigration and Customs Enforcement and is proceeding with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Preliminary review of the petition indicates that Petitioner has not provided sufficient information regarding his claims for this case to proceed.
Rule 2 of the Rules Governing Section 2254 Cases provides that the petition:
. . . shall specify all the grounds for relief which are available to the petitioner and of which he has or by the exercise of reasonable diligence should have knowledge and shall set forth in summary form the facts supporting each of the grounds thus specified."
Rule 2(c), Rules Governing Section 2254 Cases. Petitioner must also clearly state the relief sought in the petition. Id. Additionally, the Advisory Committee Notes to Rule 4 explains that ". . .`[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a `real possibility of constitutional error.'" Advisory Committee Notes to Rule 4; see Blackledge v. Allison, 431 U.S. 63, 75, n. 7, 97 S.Ct. 1621 (1977).
In the instant petition, Petitioner notes that an immigrant's detention pursuant to 8 U.S.C. § 1231(a)(2) that has exceeded the six-month presumptive period set forth in Zadvydas v. Davis, 533 U.S. 678 (2001), may be challenged on the grounds that such continued detention is no longer reasonable. The petition notes further, that where Respondent has been unable to effect the immigrant's removal to his native country and where there is no "significant likelihood" of such removal in the "reasonably foreseeable future," the immigrant's ongoing detention is indefinite and violates his substantive and procedural due process rights under the Due Process Clause of the Fifth Amendment of the United States Constitution. Petitioner also points out that indefinite detention under 8 U.S.C. § 1231(a)(6) exceeds Respondent's statutory authority.
Significantly, however, Petitioner also recognizes that the petitioner must "provide facts showing good reason to believe that there is no reasonable likelihood of his actual removal in the reasonably foreseeable future. . . ." (Doc. 1, p. 2). This is where Petitioner's claim fails. The petition states no facts relevant to Petitioner's detention. Petitioner does not indicate the date on which he was placed into ICE custody, the length of time he has been in ICE custody, his national citizenship, the date he last entered the United States, whether he is subject to a final order of removal, or any other circumstances that might bear upon the lawfulness of Petitioner's continued detention. Likewise, Petitioner has not presented any documents that would clarify for the Court any of the above-mentioned factual questions. Indeed, Petitioner makes no factual assertions whatsoever in his petition.
Accordingly, the Court ORDERS:
1. The instant petition for writ of habeas corpus is hereby DISMISSED. Petitioner is GRANTED 30 days to file a first amended petition that complies with this Order;
2. The Clerk of the Court is DIRECTED to send Petitioner a blank form petition for petitioners filing pursuant to 28 U.S.C. § 2241. Petitioner should indicate both the correct case number and the fact that the petition is a FIRST AMENDED PETITION on the front page. The First Amended Petition must contain factual allegations sufficient for the Court to proceed with Petitioner's claim of indefinite and unlawful detention by Respondent.
Petitioner is forewarned that his failure to comply with this Order may result in an Order of Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule 110.
IT IS SO ORDERED.
Unite States District Court/ Eastren District Of California
28 U.S.C. § 2241
FORMS AND INSTRUCTIONS
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN FEDERAL CUSTODY UNDER 28 U.S.C. § 2241, et seq.
CONTENTS OF THIS PACKET:
1. (form) "Petition for Writ of Habeas Corpus"
2. (form) "Application to Proceed in Forma Pauperis" — with information sheet
INSTRUCTIONS — READ CAREFULLY
1. This petition must be an original (not a photocopy), legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. You must set forth CONCISELY (briefly and to the point) the answer to each question in the proper space on the form. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury.
2. If you have more than 4 grounds for relief, you may attach pages with the remaining grounds; however, the format of the attached pages must be the same as the petition and you must provide only a brief statement of facts. No citation to legal authority is required. A brief or memorandum in support of the petition may also be attached; however, the form petition must be complete in itself and may not simply refer to the attachments.
3. Only one sentence, conviction, or parole matter may be challenged in a single petition. If you challenge more than one, you must do so by separate petition.
4. The fee to file a petition for writ of habeas corpus is $5.00, and you should submit the fee with your petition. If you do not have the necessary filing fee, you may request permission to proceed in forma pauperis, in which event you must complete and submit an Application to Proceed In Forma Pauperis, setting forth information establishing your inability to prepay the fees. You must have an authorized officer at the penal institution complete the certificate as to the amount of money on deposit to your credit in any account in the institution. You must also submit a certified copy of your trust account statement reflecting the prior 6 months of transactions.
5. When the petition is fully completed, the original and two copies must be mailed to the Clerk of the United States District Court. You must determine which court has venue (venue is the proper place — court/district/division — for the trial of a lawsuit). Depending on the nature of your case, venue may be determined by factors such as (1) location of the institution in which you are confined, (2) location of the trial court where judgment was entered, (3) location where events occurred, or (4) residence of the respondent(s). If you send your petition to a court lacking venue, your case may be dismissed, transferred to another court, or mailed back to you.
6. The Fresno Division of the United States District Court is comprised of the following counties: Fresno, Calaveras, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolomne, and the address is as follows:
Clerk, United States District Court
2500 Tulare Street, Room 1501
Fresno, California 93721
The Sacramento Division of the United States District Court is comprised of the following counties: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Solano, Sutter, Tehama, Trinity, Yolo, and Yuba, and the address is as follows:
Clerk, United States District Court
501 "I" Street, Suite 4-200
Sacramento, California 95814
You should keep a copy of the petition for your records.
7. Once the petition is filed, the court will review it. You will be sent a copy of any order the court issues. Because of the large volume of cases filed by inmates pending in this court, the court WILL NOT ANSWER INQUIRIES concerning the status of your case.
8. You must keep the Clerk of the Court informed of any change of address. If you fail to do so, the Clerk cannot be responsible for your failure to receive Court orders. This could result in the dismissal of your case. (See Local Rules 11-110 and 83-182(d))
9. The Clerk of Court cannot provide copies of documents to litigants, except at a charge of fifty cents ($.50) per page. This charge also applies to litigants proceeding in forma pauperis. Therefore, you must keep copies of all documents submitted to the court for your own records.
