Opinion
01-CV-0485E(Sr).
August 9, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 June 5, 2000 challenging a January 10, 2000 deportation order issued by Judge John B. Reid of the Batavia, N.Y. Immigration Court, which became final June 6, 2000 when the Board of Immigration Appeals ("the BIA") had dismissed petitioner's appeal therefrom. Respondents moved to dismiss such petition and Magistrate Judge H. Kenneth Schroeder, to whom that petition had been referred, issued a Report and Recommendation ("RR") May 17, 2001 recommending that the motion to dismiss be granted and that the petition be denied.
In addition to the petitions for writs of habeas corpus that petitioner has filed in this Court, he also filed a petition for review of the June 6, 2000 Order of the BIA in the Second Circuit Court of Appeals, which is presently pending therein under docket number 00-4141.
On July 9, 2001 Petitioner commenced the present proceeding seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on the basis that his continued detention without bail pending his deportation from the United States violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. Due to confusion over whether petitioner's July 9, 2001 petition had been intended to serve as objections to the May 17, 2001 RR or to commence a new proceeding, this Court issued a Memorandum and Order July 11, 2001 requiring petitioner to advise this Court of the intended purpose of his July 9, 2001 petition. Petitioner timely filed his objections to the May 17, 2001 RR July 17, 2001. Petitioner responded to this Court's July 11, 2001 Order August 1, 2001 stating that his July 9, 2001 petition had been intended to commence a new proceeding, not as objections to the May 17, 2001 RR and this Court accordingly issued an Order August 8, 2001 requiring respondents to answer the petition or to file a motion to dismiss within sixty days of service of such Order.
On September 5, 2001 the undersigned referred the present petition to Judge Schroeder pursuant to 28 U.S.C. § 636(b)(1)(B) for the preparation of an RR containing his findings of fact, conclusions of law and a recommended disposition. On October 10, 2001 respondents filed a motion to dismiss the petition for failure to state claim upon which relief can be granted. On October 12, 2001 petitioner filed a motion for summary judgment on the basis that respondents had failed to file an answer to his petition within sixty days as had been ordered by this Court.
In his motion for summary judgment, petitioner has overlooked the fact that this Court had directed respondents to either answer or move to dismiss the petition within sixty days; accordingly petitioner's contention that he is entitled to summary judgment because the respondents filed a motion to dismiss instead of an answer is meritless and will be denied. Petitioner also appears to contend that the motion to dismiss was untimely because this Court's August 8, 2001 Order had required respondents to serve such within sixty days but the motion to dismiss was not filed until October 10, 2001. Petitioner has also overlooked, however, the fact that such Order stated the motion to dismiss was to be filed within sixty days of service of such order upon respondents and, because such Order was not filed with the Clerk of this Court until August 9, 2001 there is no possibility that such was served upon respondents prior to August 10, 2001. Furthermore, even if respondents had defaulted on their motion to dismiss the petition, such would not automatically entitle petitioner to the relief he had requested therein.
In a Memorandum and Order dated January 10, 2002, familiarity with which is presumed, this Court adopted Judge Schroeder's May 17, 2001 RR, granted the respondent's motion to dismiss and dismissed petitioner's June 5, 2000 petition. Pemberton v. Ashcroft, No. 00-CV-0581E(Sr), 2002 WL 450065 (W.D.N.Y. Jan. 10, 2002). Judge Schroeder issued his second RR June 28, 2002 recommending that petitioner's July 9, 2001 petition be denied. On July 10, 2002 petitioner filed his objections to Judge Schroeder's June 28, 2002 RR and such were submitted on the papers August 9, 2002 and are presently before this Court for disposition.
In his July 9, 2001 petition, petitioner contends that his continued detention without bail pending his deportation violates his rights to due process and to be free from excessive bail and seeks to be released on his own recognizance or under reasonable bail while he continues to challenge his deportation. Judge Schroeder recommended that the July 9, 2001 petition seeking release on bail pending his challenges to his deportation be denied because petitioner had failed to establish that his challenges to his deportation are likely to be successful, as evidenced by this Court's denial of his June 5, 2000 petition for habeas corpus, from which denial petitioner did not appeal. Petitioner objects to the RR on the basis that (1) he is eligible for release on bail, (2) he believes that he will ultimately be successful in his petition to the Second Circuit Court of Appeals, (3) that aliens are entitled to due process and (4) that current law allows aliens ordered to be deported to be released on bail if they have not been deported within ninety days.
Petitioner also appears to argue that he is entitled to be released on bail now because Judge Reid had originally determined that he was ineligible for bail but had been reversed by the BIA which found he had been eligible for bail. Petitioner believes that, because Judge Reid did not thereafter grant him bail, he should be released on bail now. This argument is meritless. Even if petitioner should have been granted bail then, such does not mean that he is entitled to bail now.
Pursuant to 28 U.S.C. § 636(b)(1)(C) this Court has conducted a de novo review of the RR. None of petitioner's objections has merit. The RR did not find that aliens are not entitled to due process or that petitioner was ineligible for release on bail. Furthermore, despite petitioner's optimism, there is no reason to believe that his petition for review of the June 6, 2000 Order of the BIA which is presently pending in the Second Circuit Court of Appeals is likely to be successful inasmuch as he has already been denied relief from deportation by the Batavia, N.Y. Immigration Court, the BIA and this Court. Finally, petitioner would already have been deported but for his repeated challenges to his deportation and therefore it is only his actions that have prevented him from being deported within the ninety-day time frame.
Accordingly, it is hereby ORDERED that the RR is adopted in its entirety, that respondents' motion to dismiss is granted, that petitioner's motion for summary judgment is denied, that the petition is dismissed and that this case shall be closed in this Court.