Ndiaye v. Hassell et al

Filing 7

MEMORANDUM OPINION. Signed by Judge R David Proctor on 2/13/2015. (AVC)

FILED
2015 Feb-13 AM 09:29
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MOUHAMET NDIAYE,
Petitioner,
v.
SCOTT HASSELL et al.,
Respondents.

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Case No.: 4:14-cv-02289-RDP-JEO

MEMORANDUM OPINION
On November 25, 2014, Petitioner Mouhamet Ndiaye, who is presently detained at the
Etowah County Detention Center, filed the current habeas corpus petition pursuant to 28 U.S.C. §
2241. (Doc. 1). Ndiaye is a citizen of Senegal who has been ordered removed from the United States
to Senegal. In his petition, Ndiaye contends that he should be immediately released from custody
because he has been detained for more than six months following his removal order. (Doc. 1 at 2,
16). See Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (holding that six months is a presumptively
reasonable period of time to allow the government to remove an alien after the removal period has
commenced).
On January 6, 2015, the court ordered Respondents to show cause why the relief requested
by Ndiaye should not be granted. (Doc. 4). Respondents answered the show cause order on January
27, 2015. (Doc. 5). In their response, they argue, in part, that Ndiaye’s habeas petition should be
dismissed as premature because his removal period has not begun to run due to his filing of a petition
for review (and a corresponding motion for stay) in the United States Court of Appeals for the
Second Circuit. That petition challenges his removal and is pending before the Second Circuit.
(Doc. 5 at 3, 6-8). See Achouatte v. Holder, 2013 WL 3608156 at *1, n. 1 (W.D.N.Y. Aug. 12,

2011) (noting that the Second Circuit has a “forbearance policy” under which the government
“abstains from removing aliens who have filed petitions for review with corresponding motions for
stay in the Second Circuit”).
After receiving the response to the show cause order, Ndiaye filed a voluntary withdrawal
of his habeas petition on February 2, 2015. (Doc. 6). In light of Ndiaye’s voluntary withdrawal of
his petition, this case is due to be dismissed without prejudice. In particular, the court notes that the
case is also due to be dismissed without prejudice as a result of Ndiaye’s pending petition for review
with the Second Circuit. A separate order of dismissal will be entered.
DONE and ORDERED this

13th

day of February, 2015.

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R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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