Gonchar v. Acuff
ORDER DISMISSING CASE without prejudice finding habeas petition moot and GRANTING 19 MOTION to Dismiss Petition for Writ of Habeas Corpus as Moot Pursuant to Rule 12(B)(1) and Memorandum in Support filed by Damon Acuff. The Court closes the file. See Order for details. Signed by Judge David R. Herndon on 11/6/2017. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DMITRIY VLADIMIROVIC GONCHAR,
Civil No. 17-cv-089-DRH-CJP
MEMORANDUM and ORDER
HERNDON, District Judge:
Petitioner Gonchar filed a petition for writ of habeas corpus pursuant to 28
U.S.C. §2241 challenging his detention by Immigration and Customs Enforcement
(ICE). Now before the Court is respondent’s motion to dismiss petition for writ of
habeas corpus as moot (Doc. 19).
Relevant Facts and Procedural History
Petitioner is in this country illegally, and is subject to a final order of
removal. He was detained in ICE custody awaiting removal to Ukraine when he
filed his petition. The §2241 petition asserts that petitioner’s continued detention
is unlawful because he has been detained longer than the presumptively
reasonable period of six months set by
Zadvydas v. Davis, 121 S. Ct. 2491
(2001). The relief sought is release from custody.
Respondent argues that the petition is moot because petitioner has now
been released on an order of supervision. (Doc. 19, Ex. 1).
Under 28 U.S.C. § 2241(c), a writ of habeas corpus “shall not extend to a
prisoner” unless he is “in custody.” The “in custody” requirement is satisfied if
the petitioner was in custody at the time of the filing of the petition. Spencer v.
Kemna, 118 S. Ct. 978, 983 (1998). Therefore, a detainee who is released while
his petition for writ of habeas corpus is pending meets the “in custody”
requirement; his release does not necessarily render his petition moot.
However, the petition must still present a “case or controversy” under
Article III, § 2 of the Constitution. That is, the petitioner “must have suffered, or
be threatened with, an actual injury traceable to the [respondent] and likely to be
redressed by a favorable judicial decision.” Spencer, 118 S. Ct. at 983 (internal
The Seventh Circuit directs a federal court to “dismiss a case as moot when
it cannot give the petitioner any effective relief.” A.M. v. Butler, 360 F.3d 787, 790
(7th Cir. 2004).
That is the situation here.
Petitioner has received the relief
sought, i.e., release from ICE custody.
Respondent’s motion to dismiss petition for writ of habeas corpus as moot
(Doc. 19) is GRANTED. Petitioner’s Motion for Appointment of Counsel (Doc. 11)
and Motion to Supplement (Doc. 12) are DENIED as moot.
This action is
DISMISSED WITHOUT PREJUDICE and the Court CLOSES the file.
IT IS SO ORDERED.
Digitally signed by
Judge David R. Herndon
UNITED STATES DISTRICT JUDGE
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