ARMERO v. MUKASEY

Filing 10

REPORT AND RECOMMENDATION, It is RECOMMENDED that the 2241 petition be DISMISSED as moot re 1 Petition for Writ of Habeas Corpus filed by MARCOS ARMERO. Signed by MAGISTRATE JUDGE WILLIAM C SHERRILL, JR on 3/16/09. Internal deadline for referral to district judge if objections are not filed earlier: 4/13/2009. (pll)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

MARCOS ARMERO, ALIEN # 022-761-437, Petitioner, vs. ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, et al., Respondents. / REPORT AND RECOMMENDATION Petitioner, proceeding pro se, filed a petition seeking a writ of habeas corpus under § 2241 on February 9, 2009. Doc. 1. Petitioner simultaneously paid the filing fee. Petitioner alleged being a native of Cuba, and stated that Cuba refused to issue travel documents for him, that Respondents are unable to effect his removal, yet refuse to release him. Id., at 2. Petitioner does not challenge the validity of the removal order, only his indefinite detention under Zadvydas v. Davis, 533 U.S. 678 (2001). Id. Service was directed on February 26, 2009, doc. 3, and Respondents filed a motion to dismiss, doc. 9, on March 12, 2009. Respondents assert in the motion to dismiss that Petitioner was released from the custody of Immigration and Customs Enforcement (ICE) on February 5, 2009. Doc. Case No. 4:09cv52-SPM/WCS

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9, p. 1. Petitioner was released "since the government of Cuba declined to issue Petitioner travel documents." Id., at 2; see exhibit 1. Therefore, because Petitioner has essentially been afforded the relief sought, release from detention, this § 2241 petition should now be dismissed as moot. The motion to dismiss, doc. 9, contains a certificate of service which indicates the document was provided to Petitioner at his "last known address" which was the Wakulla County Jail. That facility will not forward mail to Petitioner since he has been released. That fact is made clear in the mail return already received as Petitioner's copy of the order directing service has been returned marked, "No Longer here." Doc. 7. Nevertheless, although this order and report and recommendation will be sent there as well, there is no case or controversy now existing and this case should be dismissed. In light of the uncontested assertion by Respondent, it is respectfully RECOMMENDED that the § 2241 petition filed by Petitioner Marcos Armero be DISMISSED as moot since it appears he has been released from detention. IN CHAMBERS at Tallahassee, Florida, on March 16, 2009.

s/ William C. Sherrill, Jr. WILLIAM C. SHERRILL, JR. UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.
Case No. 4:09cv52-SPM/WCS