Gon v. Dyer

• Decision Date: 31 August 2016
• Docket Number: CASE NO. 7:16CV00402
• Parties: ZHENLI YE GON, Petitioner, v. FRANK E. DYER III, GERALD S. HOLT, LORETTA E. LYNCH, and JOHN F. KERRY, Respondents.
• Court: U.S. District Court — Western District of Virginia

ZHENLI YE GON, Petitioner,
v.
FRANK E. DYER III, GERALD S. HOLT, LORETTA E. LYNCH, and JOHN F. KERRY, Respondents.

CASE NO. 7:16CV00402

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION

August 31, 2016

MEMORANDUM OPINION

By: Hon. Glen E. Conrad Chief United States District Judge

The petitioner, through counsel, brings two emergency motions to stay his extradition to Mexico to face criminal charges there, pending this court's ruling on his simultaneously filed, third petition for a writ of habeas corpus under 28 U.S.C. § 2241. Counsel for the United States has filed a motion to dismiss the petition, and the petitioner has responded. After review of the record, the court concludes that the § 2241 petition must be dismissed for abuse of the writ, and the motions for stay of extradition during the pendency of that petition must, therefore, be dismissed as moot.

I. BACKGROUND

The court assumes knowledge of the facts and prior rulings in this case. In brief, on June 13, 2007, Mexican authorities charged Petitioner Zhenli Ye Gon ("Ye Gon") with drug, money laundering, organized crime, and firearm offenses. Acting on a formal request by the government of Mexico, the United States filed an extradition complaint on September 15, 2008. On February 9, 2011, a magistrate judge in the District of Columbia ("the D.C. Court) certified that Ye Gon is extraditable to Mexico. In re Ye Gon, 768 F. Supp. 2d 69 (D.D.C. 2011). Ye Gon challenged the magistrate judge's extradition decision by filing a petition for a writ of habeas corpus under § 2241 in this court which was denied on January 17, 2014. Ye Gon v.

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Holt, 992 F.Supp.2d 637 (W.D. Va. 2014). The United States Court of Appeals for the Fourth Circuit affirmed, and the United States Supreme Court denied certiorari. Ye Gon v. Holt, 774 F.3d 207 (4th Cir. 2014), cert. denied, ___U.S.___, 135 S. Ct. 2859 (2015).

Ye Gon filed a second § 2241 habeas petition in this court on August 26, 2015, alleging that he was entitled to immediate release because the Secretary of State had failed to issue its extradition decision within the two-month period set by 18 U.S.C. § 3188. On September 18, 2015, the Deputy Secretary of State issued a surrender warrant for Ye Gon's extradition to Mexico. Ye Gon thereafter amended his habeas petition twice to raise additional challenges to the Deputy Secretary's decision, asserting that the court should prevent his extradition under the United Nations' Convention Against Torture ("CAT") and the Due Process and Suspension Clauses of the Constitution. This court dismissed Ye Gon's habeas petition. Ye Gon v. Dyer, No. 7:15CV00462, 2015 WL 6026278 (W.D. Va. Oct. 9, 2015).

Ye Gon appealed. The Fourth Circuit affirmed the denial of Ye Gon's habeas petition. Ye Gon v. Dyer, ___F. App'x___, 2016 WL 3209488 (4th Cir. June 10, 2016).¹ Ye Gon moved for panel rehearing and rehearing en banc, and the Fourth Circuit denied that motion on August 8, 2016. See Ye Gon v. Dyer, No. 15-7620, ECF No. 79. According to Ye Gon, on August 11, the federal respondents informed the Fourth Circuit of their position that "[a]bsent further motion or a stay of the mandate" by the Fourth Circuit "or another court with jurisdiction, the United States may proceed to extradite Ye Gon at any time following the issuance of [the Fourth Circuit's] mandate." No. 15-7620, ECF No. 80. On August 23, the Fourth Circuit denied Ye Gon's motion for a stay of the mandate while he petitioned for certiorari in the United States Supreme

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Court, and Ye Gon has now moved for reconsideration. No. 15-7620, ECF No. 81-86. Issuance of the Fourth Circuit's mandate is imminent, absent a further Court order. See Fed. R. App. P. 41(b) (directing that mandate will issue seven days after order denying stay of mandate).

On August 25, 2016, Ye Gon filed the instant § 2241 petition, arguing that he cannot be extradited until his administratively closed asylum case in the United States Immigration Court is resolved. In addition, the petition reasserts Ye Gon's claim for discharge under 18 U.S.C. § 3188 and raises new challenges to the magistrate judge's extraditability finding and the Secretary of State's finding that it is not more likely than not that Ye Gon will be tortured or killed if extradited. As stated, Ye Gon has also moved for an emergency stay of his extradition. At the heart of the matter, Ye Gon contends that if he is extradited before this court decides his § 2241 claim regarding his unresolved asylum case, this petition will be moot.

II. DISCUSSION

The federal respondents argue that Ye Gon's § 2241 petition must be dismissed for abuse of the writ, because all of the claims it presents could have been raised in Ye Gon's earlier § 2241 petitions. The court agrees.

The abuse-of-the-writ doctrine prevents a habeas petitioner from "raising a claim in a subsequent petition that he could have raised" in his previous petition or petitions. McCleskey v. Zant, 499 U.S. 467, 489 (1991). The doctrine is an...