Olawale v. Lynch et al

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 10/30/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ABOLAJI OLAWALE,
No. A074211411,
Petitioner,
vs.

Case No. 15-cv-01112-DRH

LORETTA LYNCH,
JEFF CHARLES JOHNSON,
RICARDO A. WONG, and
WARDEN OF
PULASKI DETENTION CENTER1,
Respondents.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Abolaji Olawale, an alien, is being held in the Tri-County
Detention Center in Pulaski County, Illinois, under the authority of the
Department of Homeland Security, Immigration and Customs Enforcement
(“ICE”). Proceeding pro se, Olawale filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging his continued detention.
Olawale is a native and citizen of Nigeria.

According to the petition, he

entered the United States illegally in 1989, and obtained the status of legal
permanent resident in 1996.

Olawale no longer has ties to Nigeria, but has

children in the United States. He applied for United States citizenship, but was

The Polaski Detention Center referenced in the petition is actually the Tri-County Detention
Center in Ulin, which is within Pulaski County, Illinois. See Doc. 1, p. 8.
1

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subsequently arrested and convicted of sexual assault—his habeas corpus petition
is pending.
In February 2015 an immigration judge ordered Olawale to be removed
from the United States; as a result, in March 2015 petitioner was taken into
custody by ICE.

He has remained in custody ever since because no country will

accept him. Petitioner’s custody status was reviewed on June 12, 2015, and he
was ordered to remain in detention. In July 2015 he sought review again, but he
has yet to receive a response.
Olawale argues that under Zadvydas v. Davis, 533 U.S. 678 (2001), six
months is the “presumptively reasonable period,” during which ICE may detain an
alien in order to effectuate his removal.

The Zadvydas ruling also applies to

inadmissible aliens, pursuant to the Supreme Court’s decision in Clark
Martinez, 543

U.S. 371 (2005).

expired September 25, 2015.

v.

Petitioner’s presumptive six-month period

Olawale claims, he is entitled to release from

custody under the terms of the applicable statute and case law. He also asserts
that substantive and procedural due process violations have occurred, which
should lead to his release.
Without commenting on the merits of petitioner’s claims, the Court
concludes that the petition survives preliminary review under Rule 4 and Rule
1(b) of the Rules Governing Section 2254 Cases in United States District Courts 2;
a response will be required. With that said, petitioner has named several officials

2

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus
cases, such as this action brought under § 2241.
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who are not proper respondents to a 2241 action. In Kholyavskiy v. Achim, 443
F.3d 946, 952-53 (7th Cir. 2006), the Seventh Circuit held that an immigration
detainee raising substantive and procedural due process challenges to his
“confinement

while

awaiting removal” could only name the person who has

immediate custody of him during his detention, and not high-level Immigration
and Customs Enforcement officials or the Attorney General.

Accordingly, all

defendants other than the Warden of Tri-County County Detention Center in
Pulaski County, Illinois, will be dismissed from this case.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Attorney General
LORETTA LYNCH, DHS Secretary JEFF CHARLES JOHNSON, and ICE Field
Office Director RICARDO A. WONG are DISMISSED with prejudice from this
action.
IT IS FURTHER ORDERED that the WARDEN of the Tri-County Detention
Center in Pulaski County, Illinois, shall answer the petition within thirty days of
the date this order is entered. 3 This order to respond does not preclude

the

respondent from making whatever waiver, exhaustion, or timeliness arguments it
may wish to present to the Court. Service upon the Warden, Tri-County Detention
Center, 20 Justice Drive, Ullin, Illinois, 62992 shall constitute sufficient service.
Pursuant to Federal Rule of Civil Procedure

4(i), the Clerk of Court is

DIRECTED to send a copy of the summons, petition, and this Order to the
3

The response date ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only.
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United States Attorney for the Southern District of Illinois, 750 Missouri Avenue,
East St. Louis, and to send a copy of the summons, petition, and Order via
registered or certified mail to the United States Attorney General in Washington,
D.C., and to the United States Department of Homeland Security.
IT IS FURTHER ORDERED that, pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to United States Magistrate Judge Clifford J. Proud for
further pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to a
magistrate judge for disposition, as contemplated by Local Rule 72.2(b)(2) and 28
U.S.C. § 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk (and
respondent) informed of any change in his whereabouts during this action. This
notification shall be done in writing and not later than seven days after a transfer
or other change in address occurs. Failure to provide such notice may result in
dismissal of this action. See Fed.R.Civ.P. 41(b).
IT IS SO ORDERED.
Signed this 30th day of October, 2015.

Digitally signed
by Judge David
R. Herndon
Date: 2015.10.30
12:46:29 -05'00'
United States District Judge

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