Ramirez v. The United States of America et al

Filing 21

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Ramirez's 1 Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, GRANT Respondent's 17 MOTION to Dismiss, and CLOSE this case. It is fur ther RECOMMENDED that the Court DENY Ramirez leave to proceed in forma pauperis on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 10/3/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 9/19/2017. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

DANIEL CONTRERAS RAMIREZ,
Petitioner,

CIVIL ACTION NO.: 5:16-cv-111

v.
GREGORY C. DOZIER,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Daniel Contreras Ramirez (“Ramirez”), who is currently housed at Coffee
Correctional Facility in Nicholls, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241. (Doc. 1.) Respondent filed a Motion to Dismiss contending that this Court
does not have jurisdiction to hear Ramirez’s claims. (Doc. 17.) For the reasons which follow, I
RECOMMEND that the Court GRANT Respondent’s Motion, DISMISS Ramirez’s Petition,
DIRECT the Clerk of Court to CLOSE this case, and DENY Ramirez in forma pauperis status
on appeal.
BACKGROUND
Ramirez was indicted in the Superior Court of Forsyth County, Georgia of two counts of
rape, one count of aggravated sexual battery, and two counts of child molestation. (Doc. 18-1,
pp. 2-4.) Pursuant to a negotiated plea agreement, he pleaded guilty to one count of rape and the
State dismissed the other counts against him. (Id. at pp. 7–9.) On October 3, 2013, the Superior
Court sentenced him to life with the first twenty-five years to be served in confinement and the

remainder to be served on probation. (Id.) He is currently serving this state sentence at Coffee
Correctional Facility.
Ramirez brought this action against the United States of America and others. Ramirez
seeks to have the Court compel the Department of Homeland Security (“DHS”) and the
Department of Immigration Services to commence proceedings to have him deported to Mexico,
his home country. (Doc. 1.) Ramirez contends that he is an illegal alien that has been convicted
of an aggravated felony and that he is, therefore, deportable. (Id.) The Court originally served
Ramirez’s Petition on the federal entities he named as respondents. However, because Ramirez
brought this action as a habeas corpus Petition, the Court later vacated that order and ordered that
the Petition be served upon the Commissioner of the Georgia Department of Corrections. (Doc.
12, pp. 2–3 (explaining that the only proper respondent in a habeas action is the officer having
custody of the petitioner and that the Commissioner is the state officer in charge of Georgia’s
penal institutions, including Coffee Correctional Facility, a privately-run contract facility).)
Respondent Commissioner then filed a Motion to Dismiss contending that the Court has
no jurisdiction to entertain Ramirez’s request for a deportation proceeding. (Doc. 17.) In his
Response to that Motion, Ramirez contends that the Commissioner is not the proper respondent
to his Petition. (Doc. 19.) Ramirez reiterates his claim that he is subject to deportation under the
Immigration and Nationality Act. (Id.) Ramirez explains that DHS has served him with a Notice
of Intent to Issue a Final Administrative Removal Order which he attaches to his Response.
(Doc. 19-1, pp. 1–2.)

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DISCUSSION
I.

Whether this Court has Jurisdiction to Hear Ramirez’s Request
This Court, like all district courts of the United States, is a Court of “limited jurisdiction.”

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). It possesses only that power
authorized by the Constitution and by Congress. Id. Moreover, Plaintiff bears the burden of
establishing that his claims fall within this Court’s subject matter jurisdiction. Kokkonen, 511
U.S. at 377 (because federal courts are courts of limited jurisdiction “[i]t is to be presumed that a
cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon
the party asserting jurisdiction[.]”).
Ramirez has provided no jurisdictional basis upon which this Court can entertain his
Petition. He originally indicated that he brought this case as a habeas petition. However, habeas
actions, explicitly or by necessary implication, challenge a prisoner’s conviction or the sentence
imposed on him by a court (or under the administrative system implementing the judgment).
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Thus, for example, when a prisoner makes a
claim that, if successful, could shorten or invalidate his term of imprisonment, the claim must be
brought as a habeas petition. See, e.g., Edwards v. Balisok, 520 U.S. 641 (1997); Heck v.
Humphrey, 512 U.S. 477 (1994).

Ramirez explicitly admits that he is not attacking his

conviction or sentence.
Moreover, the only proper Respondent to a habeas petition is the officer having custody
of Ramirez, and Ramirez remains in the custody of state officials at Coffee Correctional Facility
due to his state convictions. Ramirez admits that the state officer having custody of him does not

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have the ability to afford him the relief he requests, a deportation proceeding. 1 Thus, his claims
are not cognizable under Section 2241 or 2255. See Orozco, 911 F.2d at 541 (because petitioner
is not in custody of federal immigration officers, he cannot procced under Section 2241).
Ramirez also frequently cites the Immigration and Nationality Act in his pleadings.
However, the Eleventh Circuit has held that the Immigration and Nationality Act does not
provide an incarcerated alien with a cause of action to compel the federal government to
commence deportation proceedings. Orozco, 911 F.2d at 541 (“To the extent that [petitioner’s]
statements . . . could be construed as seeking a private right of action under section 1252(i) to
require the Attorney General to begin deportation proceedings, this court concurs in the
conclusion by the Eighth Circuit in Gonzalez v. United States Immigration & Naturalization
Service, 867 F.2d 1108, 1109-10 (8th Cir.1989), that an incarcerated alien has no private right of
action under section 1252(i).”). Moreover, as another court explained:
Although 8 U.S.C. § 1231(a)(4)(B) authorizes the Attorney General to remove an
alien in accordance with applicable procedures prior to the alien completing his
sentence of imprisonment, it does not impose any obligation to do so. See
8 U.S.C. § 1231(a)(4)(B). As specifically stated in 8 U.S.C. § 1228, “[n]othing in
this section shall be construed as requiring the Attorney General to effect the
removal of any alien sentenced to actual incarceration, before release from the
penitentiary or correctional institution where such alien is confined.”
Gonzalez-Hernandez v. Holder, No. 3:12-CV-318 JCH, 2012 WL 1900029, at *1 (D. Conn. May
24, 2012). 2 See also Roberts v. INS, 372 F. App’x 921 (11th Cir. 2010) (alien could not compel

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To the extent Ramirez contends that DHS or another federal agency has custody of him, that claim is
unavailing. While DHS did file a Notice of Intent to Issue a Final Removal Order, that Notice did not
cause Ramirez to come into its custody. Orozco v. U.S. INS., 911 F.2d 539, 541 (11th Cir. 1990) (“The
filing of the detainer, standing alone, did not cause [the petitioner] to come within the custody of the
INS.”) (superseded by statute on other grounds as explained by Themeus v. U.S. Dep’t of Justice, 643 F.
App’x 830, 832 (11th Cir. 2016)). Ramirez is in the custody of the State of Georgia pursuant to the
Superior Court of Forsyth County’s sentence of life with twenty-five years to serve for his rape
conviction.

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DHS, through petition for writ of habeas corpus, to provide immediate disposition of deportation
proceedings upon filing of detainer with penal facility where she had been incarcerated).
For all of these reasons, this Court does not have jurisdiction to grant Ramirez the relief
he seeks. Thus, the Court should DISMISS his Petition.
II.

Leave to Appeal in Forma Pauperis
The Court should also deny Ramirez leave to appeal in forma pauperis. Though Ramirez

has, of course, not yet filed a notice of appeal, it would be appropriate to address these issues in
the Court’s order of dismissal. Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of
party proceeding in forma pauperis is not taken in good faith “before or after the notice of appeal
is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
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Ramirez is also incorrect when arguing that he is somehow automatically entitled to deportation prior to
the service of his state sentence. Typically, when an order of removal becomes final, the Attorney
General has ninety days to effect removal. 8 U.S.C. § 1231(a)(1)(A). However, because Ramirez is in
state custody (and not under an immigration process), his removal period does not begin to run until “the
date the alien is released from detention or confinement.” 8 U.S.C. § 1231(a)(1)(A)(iii).
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Given the above analysis of Ramirez’s Petition and Respondent’s Response, there are no
non-frivolous issues to raise on appeal, and an appeal would not be taken in good faith. Thus,
the Court should DENY in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS Ramirez’s Petition
for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241, (doc. 1), and CLOSE this case. I
further RECOMMEND that the Court DENY Ramirez leave to proceed in forma pauperis.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Ramirez and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 19th day of September,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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