Gonchar v. Acuff

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/3/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DMITRIY VLADIMIROVIC GONCHAR,
Petitioner,
vs.

CIVIL NO. 17-cv-089-DRH

DAMON ACUFF,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Dmitriy Vladimirovic Gonchar, a native of Ukraine who entered the country
legally in 1997, is currently being held at the Pulaski County Detention Center in
Ullin, Illinois, pending his removal from the United States. (Doc. 1).

Petitioner

has filed a petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging
his ongoing detention by Immigration & Customs Enforcement (“ICE”) officials
since April 21, 2016. (Doc. 1, p. 5). An immigration law judge determined that
Petitioner was removable on May 26, 2016. (Doc. 1, p. 5). On December 15,
2016, ICE informed Petitioner that it had reviewed his custody status and
determined that he would not be released at that time. (Doc. 1, p. 10). Petitioner
argues that his detention is improper because he has been detained pending
removal for longer than the six months that is presumptively allowed under

Zadvydas v. Davis, 533 U.S. 678 (2001). Petitioner requests release or to be put
on supervision. (Doc. 1, p. 8).

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This matter is now before the Court for a preliminary review of the petition.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts provides that, upon preliminary review of the petition by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Rule 1(b) of those Rules gives
this Court the authority to apply the rules to other habeas corpus proceedings,
such as this action.
Discussion
The habeas petition alleges that the ongoing detention violates certain
constitutional provisions and 8 U.S.C. § 1231(a)(6). It is clear from documents
submitted by Petitioner that he has been in custody for more than 6 months, the
presumptively reasonably period. Zadvydas, 533 U.S. at 701.

The Court's

preliminary review suggests that the Petition cannot be dismissed at the screening
stage, so the Petition will proceed.
Disposition
IT IS HEREBY ORDERED that the Petition for a writ of habeas corpus
shall proceed past preliminary screening.
IT IS FURTHER ORDERED that Damon Acuff shall answer the Petition
within thirty days of the date this Order is entered. This Order to respond does
not preclude the respondent from making whatever waiver, exhaustion, or
timeliness arguments he may wish to present to the Court. Service upon the
Administrator, Tri-County Detention Center, 1026 Shawnee College Road, Ullin,
Illinois, 62992 shall constitute sufficient service.
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Out of an abundance of caution, and pursuant to Federal Rule of Civil
Procedure 4(i), the CLERK is DIRECTED to send a copy of the petition and this
Order to the United States Attorney for this District, and to send a copy of the
petition and Order via registered or certified mail to the United States Attorney
General in Washington, D.C., to the United States Department of Homeland
Security, and to the United States Immigration & Customs Enforcement.
IT IS FURTHER ORDERED that, pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to Magistrate Judge Clifford J. Proud for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
Magistrate Judge Proud 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.
IT IS SO ORDERED.
Signed this 3rd day of March, 2017.

Digitally signed by
Judge David R. Herndon
Date: 2017.03.03
09:16:55 -06'00'
United States District Court Judge

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