Ogunbanke v. Nielsen et al
Filing
47
ORDER ADOPTING 46 Findings and Recommendations; ORDER GRANTING 40 Respondent's Motion to Dismiss; ORDER DISMISSING PETITION Without Prejudice; and ORDER Declining to Issue Certificate of Appealability signed by District Judge Dale A. Drozd on 4/2/2020. CASE CLOSED. (Jessen, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
TAYO OLUGBOYEGA OGUNBANKE,
12
13
14
15
16
17
18
Petitioner,
Case No. 1:18-cv-00796-NONE-JDP
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS PETITION
v.
(Doc. No. 40)
KIRSTEN NIELSEN, et al.,
Respondent.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DISMISS
PETITION
(Doc. No. 46)
Petitioner Tayo Olugboyega Ogunbanke, a former detainee in the custody of the United
19
States Bureau of Immigration and Customs Enforcement (“ICE”) proceeding without counsel,
20
seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1.) This matter was referred to
21
a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
22
On September 16, 2019, petitioner was removed from the United States to Lagos, Nigeria.
23
(See Doc. Nos. 40-1, 41.) On October 15, 2019, respondent moved for dismissal of the petition as
24
having been rendered moot because petitioner is no longer in U.S. custody. (Doc. No. 40.) On
25
December 4, 2019, petitioner was served at his last known address with an order granting him 30
26
days to respond to the motion to dismiss. (Doc. No. 42.) Petitioner did not respond to the motion
27
to dismiss and the time for doing so has passed. On February 13, 2020, the assigned magistrate
28
judge issued findings and recommendations recommending that respondent’s motion to dismiss
1
1
be granted. (Doc. No. 46.) The findings and recommendations were served on petitioner and
2
contained notice that objections thereto were due within fourteen (14) days of service. (Id.) The
3
time for filing objections has passed and petitioner has failed to file any objections to the pending
4
findings and recommendations.
5
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this
6
court has conducted a de novo review of this case. The magistrate judge concluded that
7
petitioner’s petition for bond hearing or for release from custody was now moot because
8
petitioner had since been removed to Lagos, Nigeria. (Doc. No. 46 at 3.) The magistrate judge
9
also considered potential collateral consequences to petitioner stemming from his past
10
confinement and found that there were none, and that any appellate challenge of the immigration
11
judge’s deportation order rested exclusive in the jurisdiction of the Court of Appeals. (Id.) Based
12
on these findings, the magistrate judge recommended that respondent’s motion to dismiss be
13
granted without prejudice. (Id. at 4.) Having carefully reviewed the entire file, the court agrees
14
and finds the findings and recommendations to be supported by the record and proper analysis.
15
Having found that petitioner is not entitled to habeas relief, the court now turns to whether
16
a certificate of appealability should issue. A prisoner seeking a writ of habeas corpus has no
17
absolute entitlement to appeal a district court’s denial of his petition, as an appeal is only allowed
18
under certain circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-336
19
(2003). In addition, Rule 11 of the Rules Governing Section 2254 Cases requires that a district
20
court issue or deny a certificate of appealability when entering a final order adverse to a
21
petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th
22
Cir. 1997).
23
If, as here, a court grants a motion to dismiss a petition for a writ of habeas corpus, the
24
court may only issue a certificate of appealability when “the applicant has made a substantial
25
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a substantial
26
showing, the petitioner must establish that “reasonable jurists could debate whether (or, for that
27
matter, agree that) the petition should have been resolved in a different manner or that the issues
28
2
1
presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529
2
U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
3
In the present case, the court concludes that petitioner has not made the required
4
substantial showing of the denial of a constitutional right to justify the issuance of a certificate of
5
appealability. Reasonable jurists would not find the court’s determination that petitioner is not
6
entitled to federal habeas corpus relief wrong or debatable, and they would not conclude that
7
petitioner is deserving of encouragement to proceed further. The court therefore declines to issue
8
a certificate of appealability.
9
Accordingly:
10
1.
11
12
The findings and recommendations issued on February 13, 2020 (Doc. No. 46) are
adopted in full;
2.
13
Respondent’s motion to dismiss the petition for writ of habeas corpus (Doc. No.
40) is granted;
14
3.
The petition for writ of habeas corpus (Doc. No. 1) is dismissed without prejudice;
15
4.
The court declines to issue a certificate of appealability; and
16
5.
The Clerk of Court is directed to assign a district judge to this case for the
17
18
19
20
purposes of closure and to close this case.
IT IS SO ORDERED.
Dated:
April 2, 2020
UNITED STATES DISTRICT JUDGE
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?