Novikov v. The State of Georgia

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS WITHOUT PREJUDICE Novikov's 1 Petition, DIRECT the Clerk of Court to CLOSE this case, and DENY Novikov in forma pauperis status on appeal. Any party seeking to object to this Report and Recommendation is ordered to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 9/11/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/28/2018. (csr)

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

VITALY NOVIKOV,
Petitioner,

CIVIL ACTION NO.: 5:17-cv-164

v.
PATRICK GARTLAND,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Vitaly Novikov (“Novikov”), who is currently in the physical custody of
United States Immigration and Customs Enforcement (“ICE”) at the Folkston ICE Processing
Center in this District, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
(Doc. 1.) After the Court ordered service, Respondent filed a Response arguing that the Court
should dismiss the Petition. (Doc. 8.) For the reasons which follow, I RECOMMEND that the
Court DISMISS WITHOUT PREJUDICE Novikov’s Petition, (doc. 1), DIRECT the Clerk of
Court to CLOSE this case, and DENY Novikov in forma pauperis status on appeal.
BACKGROUND
Novikov previously resided in territory that was formerly part of the Union of Soviet
Socialist Republics but is now governed by Ukraine. Novikov was a native and citizen of the
U.S.S.R. until 1989 when he entered the United States as a refugee and later adjusted his status
to lawful permanent resident. (Doc. 8-1, p. 1.) On February 9, 2017, Novikov was convicted of
an aggravated felony relating to a crime of violence, “Criminal Domestic Violence in a High
Aggravated Nature,” in Anderson, South Carolina. (Id.) On February 9, 2017, the United States

Department of Homeland Security (“DHS”) issued a Notice to Appear (“NTA”) charging
Novikov as removable under Immigration and Nationality Act (“INA”) § 237(a)(2)(iii) for being
convicted of an aggravated felony relating to a crime of violence after admission to the United
States.

(Id.)

On April 18, 2017, the Immigration Judge sustained the allegations against

Novikov and ordered that he be removed to Ukraine. (Id.) Novikov waived his right to appeal,
making the administrative order final. (Id.)
However, Novikov has not yet been removed to Ukraine. On May 19, 2017, ICE mailed
a request to the Embassy of Ukraine for issuance of travel documents, but Ukraine has yet to
issue those documents. (Id.) ICE has taken other actions to facilitate Novikov’s removal such as
conducting reviews of Novikov’s custody conditions. (Id. at p. 2.) After those reviews, ICE
found that Novikov was deemed a flight risk or a danger to the community or national security
and that Novikov’s removal was likely in the reasonably foreseeable future. Consequently, ICE
decided to continue Novikov’s detention. (Id.) ICE has also issued several documents to
Novikov advising him of his responsibilities to assist ICE in the removal process. (Id. at p. 2.)
ICE has made additional requests for travel documents to Ukraine and Russia. (Id.) On January
29, 2018, a consent form was sent to the Ukrainian Embassy to supplement the request for travel
documents. (Id.) This form was retrieved from Novikov after a request from ICE Headquarters
Removal and International Operations Unit. (Id.)
Novikov filed this Section 2241 action on December 4, 2017. (Doc. 1.) Therein, he
argues that he should be released pursuant to the ruling in Zadvydas v. Davis, 533 U.S. 678
(2001), and that his continued detention violates his constitutional rights. Respondent filed his
Response, through counsel, on February 9, 2018. (Doc. 8.)

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DISCUSSION
I.

Dismissal of Novikov’s Section 2241 Petition
Under the Immigration and Nationality Act, “when an alien is ordered removed, the

Attorney General shall remove the alien from the United States within a period of 90 days.”
8 U.S.C. § 1231(a)(1)(A). During that period, the Attorney General must detain the alien.
8 U.S.C. § 1231(a)(2). The Attorney General may detain certain categories of aliens beyond the
90-day removal period. 8 U.S.C. § 1231(a)(6). However, any continued detention under that
statute must not be indefinite. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (construing
8 U.S.C. § 1231(a)(6) to contain a “reasonable time” limitation in which the Attorney General
may detain aliens beyond the 90-day period). The United States Supreme Court has found that
six months is a presumptively reasonable period to detain a removable alien awaiting
deportation. Id.
Zadvydas does not entail, however, that every alien detained longer than six months must
be released. Id. Rather, to state a claim for habeas relief under Zadvydas, an alien must:
(1) demonstrate that he has been detained for more than six months after a final order of
removal; and (2) “provide evidence of a good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.” Akinwale v. Ashcroft, 287 F.3d
1050, 1052 (11th Cir. 2002). If a petitioner makes these showings, the burden shifts to the
Government to respond with evidence to rebut that showing. Zadvydas, 533 U.S. at 701.
Novikov has satisfied the first prong of Akinwale (i.e., detention beyond the six-month
removal period). His order of removal became administratively final on April 18, 2017. Thus,
the six-month mark passed on October 17, 2017. Nevertheless, he has failed to satisfy the
second prong of Akinwale. Novikov has not presented any evidence of a good reason to believe

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that there is no significant likelihood of removal in the reasonably foreseeable future. Akinwale,
287 F.3d at 1052. Novikov has not argued, much less presented evidence, that any department of
the United States has hindered his removal. Rather, throughout his Petition, he simply makes
conclusory arguments without any factual support.
Novikov’s conclusory and generalized allegations regarding Ukraine’s intentions and
practices are insufficient to state a claim that there is no significant likelihood of his removal in
the reasonably foreseeable future. Fahim v. Ashcroft, 227 F. Supp. 2d 1359, 1365 (N.D. Ga.
2002) (Petitioner’s “bare allegations are insufficient to demonstrate a significant unlikelihood of
his removal in the reasonably foreseeable future.”). Novikov’s wholly conclusory allegations
lack any support in the record and do not require consideration by this Court, let alone entitle
him to any relief. See Caderno v. United States, 256 F.3d 1213, 1217 (11th Cir. 2001) (vague,
conclusory allegations in a Section 2255 motion insufficient to state basis for relief); Tejada v.
Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (quoting Stano v. Dugger, 901 F.2d 898, 899
(11th Cir. 1990) (petitioner not entitled to habeas relief “when his claims are merely ‘conclusory
allegations unsupported by specifics’ or ‘contentions that in the face of the record are wholly
incredible.’”)).
Equally unavailing is Novikov’s implied argument that the Court can somehow presume
that he will not be removed in the reasonably foreseeable future because he was not removed
within 180 days of the removal order. Under this line of reasoning, the Court must grant relief
any time a petitioner is held for longer than six months after a removal order. This would render
the second prong of Akinwale meaningless and contradict the holding of Zadvydas.
Furthermore, Novikov does not explain how the past lack of progress in the issuance of his travel
documents means that Ukraine will not produce the documents in the foreseeable future. See

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Fahim, 227 F. Supp. 2d at 1366 (“The lack of visible progress since the INS requested travel
documents from the Egyptian government does not in and of itself meet [petitioner’s] burden of
showing that there is no significant likelihood of removal.

‘[I]t simply shows that the

bureaucratic gears of the INS are slowly grinding away.’ [Khan v. Fasano, 194 F. Supp. 2d
1134, 1137 (S.D. Cal. 2001).] In other words, the mere fact that the Egyptian government has
taken its time in responding to the INS request for travel documents does not mean that it will
not do so in the future.”).

While Novikov has shown bureaucratic delays in his removal

proceedings, he has not demonstrated a significant unlikelihood of his removal in the reasonably
foreseeable future.
Novikov has failed to present any facts indicating that ICE is incapable of executing his
removal order and that his detention will be of an indefinite nature. However, circumstances
could eventually change in Novikov’s removal situation to the point that he could present a
plausible claim for relief. Accordingly, the Court should DISMISS his Petition WITHOUT
PREJUDICE. Akinwale, 287 F.3d at 1052 (“Because circumstances may ultimately change in
[petitioner’s] situation, we affirm the dismissal without prejudicing [petitioner’s] ability to file a
new § 2241 petition in the future that may seek to state a claim upon which habeas relief can be
granted.”).
II.

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

Though

Novikov 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

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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. County 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).
Based on the above analysis of Novikov’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 WITHOUT
PREJUDICE Novikov’s Petition, (doc. 1), and DIRECT the Clerk of Court to CLOSE this
case. I further RECOMMEND that the Court DENY Novikov 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 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

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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
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 Novikov and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 28th day of August,
2018.

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

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