Morsi v. Holder et al

Filing 29

ORDER denying 18 Motion to Dismiss and GRANTING 28 Motion to Amend Petition.Ordered by US Mag Judge Stephen Hyles on 3/1/12 (lws) Modified on 3/1/2012 (sbd).

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA VALDOSTA DIVISION ALI A. MORSI, Petitioner, v. ERIC HOLDER, et al., Respondents. _________________________________ : : : : : : : : : CASE NO. 7:11-CV-67 HL MSH 28 U.S.C. § 2241 ORDER On May 5, 2011, Petitioner Morsi, who was at the time incarcerated in the Etowah County Jail in Gadsden, Alabama, filed the current habeas corpus petition pursuant to 28 U.S.C. ' 2241. (Pet’r’s Pet., ECF No. 1.) On August 25, 2011, Respondents filed a preanswer Motion to Dismiss along with a Memorandum in support of same. (ECF No. 18.) Petitioner filed his Response to the motion to dismiss on September 15, 2011. (ECF No. 21.) The Respondents then filed a Reply to on October 17, 2011. (ECF No. 23.) On December 7, 2011, Petitioner was released on an Order of Supervised Release pending his deportation. (Mot. for Leave to Amend, 1; ECF No. 28.) Then, on February 14, 2012, Petitioner filed a Motion to Amend the Petition. For the reasons set out below, the Respondents’ Motion to Dismiss is DENIED and Petitioner’s Motion to Amend is hereby GRANTED. PETITIONER’S CLAIMS Petitioner Morsi claimed that he was being held in violation of 8 C.F.R. § 241 of 1 the Immigration and Nationality Act which allows detention of an alien who is under an order of removal for a period not to exceed ninety (90) days. (Pet’r’s Pet. 3.) Petitioner also claimed that his Fifth Amendment rights have been violated pursuant to the holding in Zadvydas v. Davis, 533 U.S. 678 (2001) because he has been in custody for more than six months since the issuance of the final order of removal. (Id.) Petitioner, therefore, requested that his writ of habeas corpus be granted and that he be released. (Id.) DISCUSSION In this case, after the filing of the motion to dismiss, as well as the Response and Reply, the Court appointed Petitioner counsel on November 28, 2011. Following Petitioner’s release on an Order of Supervised Release, a status conference was held in this case on January 17, 2012. Petitioner’s counsel then filed a Motion to Amend the Petition. (ECF No. 28.) Respondents have consented to the motion to amend. Because the Petitioner will be filing an amended petition, the pending motion to dismiss is denied at this time. The parties will be allowed to file dispositive motions in this case within ninety days after the Respondent’s answer to the amended petition is filed. WHEREFORE, IT IS HEREBY ORDERED that Respondents’ Motion to Dismiss be DENIED. It is also ORDERED that Petitioner’s Motion to Amend be GRANTED. SO ORDERED, this the 1st day of March, 2012. S/ Stephen Hyles UNITED STATES MAGISTRATE JUDGE 2

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