APONTE v. BARROW

Filing 5

ORDER DISMISSING without prejudice 1 Petition. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 6/17/2014. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
:
ANGEL DIAZ-MICIADES APONTE,
:
:
Petitioner,
:
:
VS.
:
:
Warden DON BARROW,
:
:
Respondent.
:
_________________________________

NO. 5:14-CV-151 (MTT)
ORDER

Petitioner ANGEL DIAZ-MICIADES APONTE, a prisoner at Washington State
Prison, has filed a 28 U.S.C. § 2241 habeas action (Doc. 1). In compliance with this
Court’s May 14, 2014 Order (Doc. 3), Petitioner has completed and submitted the Court’s
section 2241 form (Doc. 4).
As discussed in the May 14th Order, Petitioner is presently serving a 25-year
sentence arising out his 2008 state court conviction for trafficking in cocaine. According
to Petitioner, the Georgia State Board of Pardons and Paroles (the “Board”) allegedly
issued Petitioner a “parole certificate,” but revoked that certificate and declared Petitioner
“parole ineligible” after a federal immigration judge ordered Petitioner’s removal from the
United States.
It was unclear in Petitioner’s initial filing whether he wished to challenge the
Board’s decision or the United States Immigration and Customs Enforcement’s (“ICE”)
failure to deport Petitioner to his native Dominican Republic. It appears from Petitioner’s
section 2241 form that he does not wish to challenge the Board’s action, but instead

wishes to effect his deportation. For example, as relief, Petitioner requests that this
Court direct “the United States Attorney [to] issue an order to (ICE) to start the deportation
procedure, or consider Petitioner[‘s] filing of an application for cancellation of removal
based on the hardship of Petitioner’s U.S. born children and wife, who is also a U.S.
citizen.”
Under 8 U.S.C. § 1231(a)(1)(A), when an alien is ordered removed, the Attorney
General must generally remove the alien from the United States within 90 days of the
latest of the following dates: (1) the date the order of removal becomes administratively
final; (2) if the removal order is judicially reviewed and a court orders a stay of removal,
the date of the court’s final order; or (3) if the alien is detained or confined, the date the
alien is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(B). The
Attorney General, however, generally “may not remove an alien who is sentenced to
imprisonment until the alien is released from imprisonment.” See 8 U.S.C.
§ 1231(a)(4)(A); see also U.S. v. Brito, 347 F. App’x 520, 521 (11th Cir. Sept. 30, 2009).
Petitioner thus has no right to deportation while he is incarcerated pursuant to a state
court sentence. See Duamutef v. I.N.S., 386 F.3d 172, 179 (2d Cir. 2004) (“The law is
clear that while [an alien] is still serving his state sentence, the Attorney General is under
no obligation to execute a deportation order.”). Moreover, Petitioner has no private right
of action to compel removal. See 8 U.S.C. § 1231(a)(4)(D).
Even if Petitioner were challenging the Parole Board’s revocation of his “parole
certificate,” said challenge would fail. As the Court noted in its prior Order, there is
generally no constitutional right to parole, and Petitioner has alleged no facts supporting a
challenge to the Board’s action. Moreover, the Court instructed Petitioner in its May 14th

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Order to state any steps he had taken to exhaust his state remedies with respect to the
Board’s action (such as filing a mandamus action in state court). Yet Petitioner makes
no suggestion in his section 2241 form that he has taken any such steps. Exhaustion of
state court remedies is required before a Petitioner can proceed in a section 2241 action.
Thomas v. Crosby, 371 F.3d 782, 812 (11th Cir. 2004) (explaining that “[a]mong the
most fundamental common law requirements of § 2241 is that petitioners must first
exhaust their state court remedies”). Thus, Petitioner did not give the state court “a full
and fair opportunity to address [his parole] claim on the merits.” Footman v. Singletary,
978 F.2d 1207, 1210-11 (11th Cir. 1992).
Based on the foregoing, the instant petition is hereby DISMISSED WITHOUT
PREJUDICE.
SO ORDERED, this 17th day of June, 2014.

S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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