Llovera v. Florida State

Filing 16

ORDER ADOPTING 15 REPORT AND RECOMMENDATION. Signed by Judge James I. Cohn on 4/9/2014. (ms00)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-60799-CIV-COHN/WHITE
RAFAEL LLOVERA,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
___________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
AND DENYING PETITION
THIS CAUSE is before the Court on the Report and Recommendation [DE 15]
(“Report”) of Magistrate Judge Patrick A. White to Petitioner Rafael Llovera’s
Emergency Petition for Writ of Habeas Corpus [DE 1] (“Petition”) under 28 U.S.C. §§
2241, 2254 and 1651. Despite the lack of any timely objections to the Report, the Court
has reviewed the Petition de novo, the Report, the record in the case, and is otherwise
advised in the premises.
In his Petition, Petitioner attacks his three Florida convictions and resulting order
of deportation under 28 U.S.C. §§ 2241, 2254 and 1651. After thoroughly considering
Petitioner’s claims, Judge White recommended that the claims be denied. Judge White
recommended that Petitioner’s § 2241 claim be denied because Petitioner is not
entitled to habeas corpus relief under § 2241. As Judge White explains, to the extent
Petitioner is challenging his final order of removal, the Court lacks jurisdiction because
jurisdiction over final removal orders is vested in the circuit courts. See 8 U.S.C. §

1252(a)(5). Moreover, to the extent that Petitioner is challenging the lawfulness of his
continued confinement, such a claim is meritless because Petitioner has not ceased
resisting deportation; thus, he cannot state a claim under Zadvydas v. Davis, 533 U.S.
678 (2001).
As to Petitioner’s § 2254 claim challenging the lawfulness of his Florida
convictions, Judge White recommended that the claim be dismissed for lack of
jurisdiction because Petitioner does not satisfy the “in custody” requirement under §
2254(a). See Carafas v. LaVallee, 391 U.S. 234 (1968). Petitioner has already
completed his sentences related to his Florida convictions and is no longer “in custody”
due to those convictions. Petitioner’s ICE confinement, moreover, does not satisfy the
“in custody” requirement under § 2254(a). See Maleng v. Cook, 490 U.S. 488 (1989).
As to Petitioner’s § 1651 claim, Judge White recommended that the claim also
be dismissed for lack of jurisdiction because coram nobis in federal court is not a
vehicle for challenging state court convictions. See Young v. Warden, FCC Coleman,
508 Fed. App’x 918, 920 (11th Cir. 2013).
After a careful review, this Court agrees with Magistrate Judge White’s
reasoning, conclusions, and recommendations. The Court will therefore deny the
Petition without an evidentiary hearing. The Court will also deny a certificate of
appealability because Petitioner has not shown that "jurists of reason would find it
debatable whether the petition states a valid claim of denial of a constitutional right and

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that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1.

The Magistrate Judge’s Report and Recommendation [DE 15] is hereby
ADOPTED;

2.

Petitioner’s Emergency Petition for Writ of Habeas Corpus [DE 1] is DENIED;

3.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, Petitioner is
hereby DENIED a certificate of appealability because Petitioner has failed to
make a substantial showing that he was denied a constitutional right. The Court
notes that pursuant to Rule 22(b)(1) of the Federal Rules of Appellate
Procedure, Petitioner may request issuance of a certificate of appealability from
the Eleventh Circuit; and

4.

The Clerk may CLOSE this case and DENY all pending motions as MOOT.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,

Florida, this 9th day of April, 2014.

Copies provided to counsel of record and pro se parties via CM/ECF.

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