Elcock v. Streiff, Civil Action No. 2:06-0534-KD-B.

• Decision Date: 14 March 2008
• Docket Number: Civil Action No. 2:06-0534-KD-B.
• Citation: 554 F.Supp.2d 1279
• Parties: Sheglon ELCOCK, Petitioner, v. David O. STREIFF, et al., Respondents.
• Court: U.S. District Court — Southern District of Alabama

554 F.Supp.2d 1279

Sheglon ELCOCK, Petitioner, v. David O. STREIFF, et al., Respondents.

Civil Action No. 2:06-0534-KD-B.

United States District Court, S.D. Alabama, Northern Division.

March 14, 2008.

Sheglon Elcock, Batavia, NY, pro se.

Gary A. Moore, U.S. Attorney's Office, Mobile, AL, for Respondents.

ORDER

KRISTI K. DuBOSE, District Judge.

After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the recommendations to which objection is made, the recommendation of the Magistrate Judge made under 28 U.S.C. § 636(b)(l)(B) and dated February 22, 2008 (doc. 24), is ADOPTED as the opinion of this' Court.

REPORT AND RECOMMENDATION

SONJA F. BIVINS, United States Magistrate Judge.

This is an action brought pursuant to 28 U.S.C § 2241 by Sheglon Elcock,¹ a citizen and native of Guyana, who is being detained by the U.S. Department of Homeland Security, Immigration and Customs Enforcement ("ICE"). (Doc. 1). This action has been referred to the undersigned for report and recommendation pursuant to 28 U.S.C § 636(b)(1)(B) and Local Rule 72.1(c) and is now ready for consideration. The record is adequate to determine Elcock's claims; thus, no evidentiary hearing is required. Following a careful review of the record, it is recommended that the instant petition be dismissed, without prejudice.

FINDINGS OF FACT

1. Elcock is a native and citizen of Guyana, who entered the United States in 1982 as a lawful permanent resident. (Docs. 1; 13, Ex. 3).

2. On or about September 21, 1999, Elcock was convicted in New York, under the alias of "Garvin Webster" for the criminal sale of a controlled substance and criminal possession of a controlled substance. He was sentenced, as a second felony offender, to a term of imprisonment of five (5) to ten (10) years in the custody of the New York State Department of Corrections. (Doc. 13, Ex. 3).

3. On July 15, 2004, a Notice to Appear was issued by ICE charging Elcock as removable pursuant to § 237(a)(2)(B)(I), as a controlled substance violator, and § 237(a)(2)(A)(iii), as an aggravated felon, of the Immigration and Nationality Act. On that same date, Petitioner was remanded to ICE custody from New York State Department of Corrections. (Id.)

4. On September 17, 2004, an Immigration Judge ordered Elcock removed from the United States to Guyana. (Id.) Elcock filed an appeal of the removal order with the Board of Immigration Appeals, which affirmed the removal order on March 3, 2005. (Id.) On May, 9, 2005, the Board of Immigration Appeals denied Elcock's motion to reconsider the order of removal, and the order of removal became final. (Id.)

5. On March 18, 2005, the Guyanese government issued travel documents for Elcock, and he was scheduled for removal on April 20, 2005. The Government contends, and Elcock has not denied, that he refused to cooperate so as to allow his repatriation to Guyana. (Id.)

6. On May 16, 2005, Elcock filed a petition for writ of habeas corpus and a motion to stay removal in the United States District Court for the Western District of New York, which was subsequently transferred to the Second Circuit Court of Appeals. (Doc. 13, Ex. 4). On March 8, 2006, the Court of Appeals dismissed Elcock's appeal of the Board of Immigration Appeal's decision. (Doc. 13, Ex. 5)²

7. On March 20, 2006, Elcock filed a second habeas petition and motion for stay of removal in the District Court for the Western District of New York. (Doc. 13, Ex. 8). The petition was transferred to the Second Circuit Court of Appeals, which dismissed the appeal as untimely on February 12, 2007. (See Elcock v. Gonzales 06-1743-ag, U.S. Court of Appeals for the Second Circuit).

8. Elcock filed another appeal and request for stay of removal with the Second Circuit Court of Appeals in September 2007. His appeal and stay request are still pending before that Court. (Doc. 23, Ex. 1).

9. Petitioner filed the instant petition for writ of habeas corpus on September 7, 2006 (Doc. 1), seeking his immediate release from ICE custody on the ground that his continued detention violates his rights under the Due Process Clause of the Fifth Amendment. (Doc. 1). Petitioner asserts that he is entitled to exhaust all of his legal options and that his continued detention, under the mandatory detention provisions, without an individualized bond hearing, violates his procedural and substantive rights.

10. Respondents assert that Elcock remains detained because of his own actions. (Doc. 13). More specifically, Respondents assert that although travel documents were secured for Elcock, he failed to cooperate and has filed numerous petitions and motions, including motions to stay the removal order and has thereby effectively prevented his removal to Guyana. Respondents further assert that the removal period has not yet commenced due to Elcock's various legal filings and that since travel documents were previously secured from Guyana, there is no reason to believe that Elcock will not be removed in the reasonably foreseeable future.

CONCLUSIONS OF LAW

As a preliminary matter, the undersigned finds that this Court has jurisdiction over Petitioner's case notwithstanding the fact that he has been transferred out of this District³ The record reflects that at the time Petitioner filed his petition, he was being detained at the Perry County Correctional Center, which is located in this District. (Doc. 1). The proper defendant in a habeas case is generally the petitioner's "immediate custodian," that is, the warden of the facility in which the petitioner is incarcerated or detained at the time he files the habeas petition. Rumsfeld v. Padilla, 542 U.S. 426, 439, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). Based upon a reading of the Supreme Court's Padilla decision, it does not appear that Padilla alters the well-settled rule that if a district court properly acquires jurisdiction when the case is filed, then the petitioner's subsequent removal to another judicial district does not destroy the court's jurisdiction. 542 U.S. at 440, 124 S.Ct. at 2721, 159 L.Ed.2d at 531, relying on Ex parte Endo, 323 U.S. 283, 306, 65 S.Ct. 208, 89 L.Ed. 243 (1944). Thus, jurisdiction attaches upon the initial filing of the § 2241 petition and will not be destroyed by a petitioner's subsequent Government-effectuated transfer and accompanying change in physical custodian. Tang v. Gonzales, 2006 WL 3628061, 2006 U.S. Dist. LEXIS 93572 (N.D.Fla.2006)(citing Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir.2005)).

In Tang, the court observed that the petitioner had been previously detained in three other facilities before being transferred to that district and that the petitioner's case was a good example of the difficulty that would be caused if jurisdiction shifted whenever a petitioner was transferred. According to the court in Tang, "[i]f a § 2241 petition must be transferred every time the petitioner is transferred, it is doubtful that the case would ever be decided." Id. at, 2006 WL 3628061 *2, 2006 U.S. Dist. LEXIS 93572, *6. In this case, the evidence is undisputed that Petitioner was incarcerated within this District at the time he filed his § 2241 petition. (Doc. 1). Accordingly, the undersigned finds that this Court has jurisdiction over Petitioner's case notwithstanding the fact that he was transferred out of this District following the filing of his petition.

[4] As noted supra, Elcock is challenging his continued detention pending removal. Specifically, Elcock asserts that his mandatory detention, since 2004, without an individualized bail hearing violates his rights. 8 U.S.C. § 1226(c) provides, in pertinent part, that:

The Attorney General shall take into custody an 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 one 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). "Thus, the Attorney General is directed by that statute to detain `deportable' criminal aliens during the period following the expiration of their original sentences but prior to a decision regarding their removal." De La Teja v. United States, 321 F.3d 1357, 1362 (11th Cir.2003); 8 U.S.C. § 1226(c)(1). The Attorney General has discretion to release an alien, however, but only if the alien or an immediate family member is participating in the Federal Witness Protection Program, and the alien "satisfies the Attorney General that [he or she] will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding." 321 F.3d at 1362; 8 U.S.C. § 1226(c)(2).

In this case, the record reflects, and Elcock does not contest that he was convicted of a drug trafficking offense, which qualifies as an aggravated felony under the statute. As a result, upon the completion of his sentence in 2004, 8 U.S.C. § 1226(c)(1) required that he be placed in ICE custody during the pre-removal period. The Immigration Judge ordered Elcock removed from the United States to Guyana on September 17, 2004, and this decision was affirmed by the Board of Immigration Appeals on March 3, 2005. On May 9, 2005, the Board of Immigration Appeals denied Elcock's motion for reconsideration, and the order of removal became final. Once the removal order became final, Elcock was...