CHARLES J. SIRAGUSA, District Judge.
The Honorable Victor E. Bianchini, United States Magistrate Judge, having issued a Report and Recommendation (Docket No. [#19]) on April 15, 2010, recommending that this action be dismissed as moot, and no objection having been filed within the time specified for doing so, it is hereby
ORDERED, that pursuant to 28 U.S.C. § 636(b)(1)(C), the Court accepts and adopts the Report and Recommendation (Docket No. [# 19]) in its entirety, and, for the reasons stated in the Report and Recommendation, this action is dismissed.
Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability, since Petitioner has not made a substantial showing of the denial of a constitutional right.
Petitioner must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within thirty (30) days of the date of judgment in this action. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.
VICTOR E. BIANCHINI, United States Magistrate Judge.
This habeas proceeding pursuant to 28 U.S.C. § 2241 was filed by pro se petitioner Alberto Arthur ("Arthur" or "Petitioner"),
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) for the issuance, inter alia, or a report and recommendation regarding the disposition of Arthur's petition.
On March 17, 2010, this Court directed respondents (collectively hereinafter "the Government") to provide an update regarding the status of Arthur's immigration
The Government then filed the pending motion to dismiss (Docket No. 17) on the basis that the petition has been rendered moot by virtue of Arthur's deportation from the United States on March 23, 2010, which released him from DHS/ICE's administrative custody. See Affidavit of Gail Y. Mitchell, Esq., AUSA and Exhibit A (copies of DHS/ICE documents confirming Arthur's removal from the United States) (Docket Nos. 17-1, 17-2) and Memorandum of Law (Docket No. 18).
For the reasons set forth herein, Arthur's petition for a writ of habeas corpus should be dismissed and his request for appointment of counsel should be denied.
Section 2241(c)(1) of Title 28 of the United States Code provides that district courts may consider habeas petitions from prisoners "in custody under or by color of the authority of the United States." 28 U.S.C. § 2241(c)(1). "The `in custody' requirement is satisfied if the petitioner files the habeas petition before being deported." So v. Reno, 251 F.Supp.2d 1112, 1120 (E.D.N.Y.2003) (citing Gonzalez v. INS, No. 01 Civ. 6229(HB), 2002 WL 31444952, at *3 (S.D.N.Y. Oct. 31, 2002) (stating that petitioner satisfies "in custody" requirement of 28 U.S.C. § 2241 so long as he is in physical custody at the time the petition is filed even if petitioner is later deported)).
"A non-citizen who has been deported must go beyond satisfying the `in custody' requirement of the federal habeas statute; it must also be demonstrated that the case is not moot as a result of the deportation." So, 251 F.Supp.2d at 1120-21. "`[A] case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)); accord City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); New York City Employees' Retirement System v. Dole, 969 F.2d 1430, 1433 (2d Cir.1992). The Supreme Court has explained that
City of Erie v. Pap's A.M., 529 U.S. at 287, 120 S.Ct. 1382.
The Government argues that because Arthur's removal has been effected, the only relief he requested in his petition-namely, release from continued detention in administrative custody-has been granted. See Respondent's Supporting Memorandum of Law at 3, 4 (Docket No. 18). Consequently, respondents argue, the petition has been rendered moot and can be dismissed. Id. (Docket No. 18); see also Mitchell Aff., ¶¶ 6-7 (Docket No. 17).
Here, by this habeas corpus petition, the only remedy that Arthur properly could seek was release from detention in administrative custody.
I agree with the Government that because Arthur has been deported, the only relief available to him in this habeas proceeding-namely, release from continued detention in administrative custody-has been granted. As the Government argues, when the parties have no legally cognizable interest or practical personal stake in a dispute and a court is therefore incapable of granting a judgment that will affect the legal rights as between the parties, there is mootness in the constitutional sense. Respondent's Memorandum of Law at (citing Davis v. New York, 316 F.3d 93, 99 (2d Cir.2002) ("Under Article III, section 2 of the Constitution, federal courts lack jurisdiction to decide questions that cannot affect the rights of litigants in the case before them.")). Arthur's habeas petition no longer presents a "live" case or controversy for purposes of satisfying Article III, Section 2 of the United States Constitution. See Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir.1983) ("The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed."). Therefore, it should be dismissed as moot. See So v. Reno, 251 F.Supp.2d at 1124 ("Mr. So's challenge to
Furthermore, the Court agrees with the Government that its motion to dismiss the petition on grounds of mootness also provides grounds for denial of the Petitioner's motion to appoint counsel to represent him in this habeas proceeding. Resp't Mem. at 4 (Docket No. 18); Mitchell Aff., ¶ 8 (Docket No. 17). Accordingly, I recommend finding that Arthur's motion to appoint counsel is moot and therefore also should be denied with prejudice.
For or the reasons stated above, the Court recommends that respondent's motion to dismiss be granted and that Alberto Arthur's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be dismissed as moot. The Court further recommends that Arthur's motion to appoint counsel also be dismissed as moot. Because the Court believes that Arthur has not made a substantial showing of a denial of a constitutional right, the Court recommends that a certificate of appealability not issue. See 28 U.S.C. § 2253(c)(2) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.2000).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
The District Court ordinarily will refuse to consider on de novo review arguments, case law and evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See, e.g., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir.1988).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.1988); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
The parties are reminded that, pursuant to Rule 72.3(a)(3) of the Local Rules for the Western District of New York, "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority."
Let the Clerk send a copy of this Order and a copy of the Report and Recommendation to Petitioner and Respondents.