Abanukam v. Acuff et al

Filing 13

ORDER DISMISSING CASE, Granting #8 MOTION to Dismiss Habeas Petition (Doc. 1) filed by Merrick Garrand, Alejandro Mayorkas, Robert Guadian, Mattew Albence, Damon Acuff. The Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. Sec. 2241 (Doc. #1 ) is DISMISSED. However, the dismissal is without prejudice to Abanukam pursuing his habeas corpus claims in his pending action in the Northern District of Texas, Abanukam v. Barr, et al., Case No. 20-cv-252-C, and without prejudice to any suit he may bring regarding his conditions of confinement. The Clerk is DIRECTED to transmit a copy of this Order to the Clerk of Court for the Northern District of Texas, Abilene Division, for filing or reference in Abanukam v. Barr, et al., Case No. 20-cv-252-C (N.D. Tex.). Signed by Judge J. Phil Gilbert on 7/14/2021. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JUSTIN ABANUKAM,
A# xxx-xx9-516,

)
)
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Petitioner,
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vs.
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DAMON ACUFF, Warden of Pulaski
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County Detention Center,
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MERRICK GARRAND, Attorney General, )
ALEJANDRO MAYORKAS, Secretary,
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U.S. Department of Homeland Security,
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MATTEW ALBENCE, Acting Director,
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U.S. ICE,
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and
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ROBERT GUADIAN, U.S. ICE Director,
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Chicago Field Office,
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)
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Respondents.
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Case No. 21-cv-545-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Petitioner Justin Abanukam is in immigration detention at the Pulaski County Detention
Center in Ullin, Illinois (“Pulaski”). He filed his Emergency Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 on June 6, 2021 (Doc. 1) seeking immediate release or a bond
hearing. (Doc. 1, p. 22). He asserts that the length of his detention (20 months) violates his Fifth
Amendment due process rights; argues that the conditions of his confinement justify his release;
and claims that he is wrongly subjected to mandatory detention because U.S. Immigration and
Customs Enforcement (“ICE”) did not take him into custody until 7 years after he was released
from criminal custody on the offense that rendered him removable. (Doc. 1, pp. 2, 10-20).
The Respondents filed a Motion to Dismiss the Petition, asserting that Abanukam’s action

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in this Court is duplicative of his pending habeas case in the Northern District of Texas, Abanukam
v. Barr, et al., Case No. 20-cv-252-C, filed December 21, 2020 while Abanukam was confined in
that district. (Doc. 8, pp. 1-2, 6-7; Doc. 8-1). Respondents further argue that Abanukam’s
conditions of confinement claims are not properly brought in a habeas action. (Doc. 8, pp. 2-6).
Abanukam replied to the Motion to Dismiss. (Doc. 12).
Based upon the Court’s review and consideration of the parties’ arguments and
documentation, and for the following reasons, the Motion to Dismiss the Petition will be
GRANTED.
Background
Abanukam, age 46, is a Nigerian citizen who has resided in the United States for 11 years,
since January 2009. He entered the U.S lawfully and applied for adjustment of status based on his
marriage to a U.S. Citizen. (Doc. 1, pp. 5-6). The couple subsequently divorced. Abanukam has
three U.S. Citizen children, and a brother who is a naturalized U.S. Citizen. (Doc. 1, p. 5). In
January 2012, Abanukam applied for VAWA1 immigration status based on abuse inflicted on him
by his ex-wife and her brothers; that application was granted on August 14, 2013. (Doc. 1, pp. 67).
Prior to that approval, Abanukam was convicted in June 2012 of a family violence Class
A misdemeanor in Texas and sentenced to 18 months’ probation. Immigration authorities did not
detain him at that time. (Doc. 1, p. 7). In September 2018, Abanukam was arrested and charged
with rape in Louisville, Kentucky. (Doc. 1 p. 8). His trial was to take place on October 7, 2019,
but the case was dismissed. (Doc. 1-1, pp. 39, 41). Abanukam was taken into immigration custody
on October 17, 2019 and has remained in ICE detention since then. (Doc. 1, p. 9).

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Violence Against Women Act.

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Abanukam was placed in removal proceedings and sought cancellation of removal. (Doc.
1, p. 9). In December 2020 his VAWA approval was revoked; in March 2021 he was ordered
removed by an Immigration Judge (“IJ”). Abanukam’s appeal remains pending before the Board
of Immigration Appeals (“BIA”). (Doc. 1, p. 10). Based on the backlog of cases before the BIA
and his intention to seek judicial review of any adverse decision, Abanukam asserts that his
detention is likely to continue into 2022. (Doc. 1, p. 21).
Discussion
The Court finds that this action is duplicative of Abanukam’s pending habeas action in
Texas, therefore it is unnecessary to address the merits of his habeas claims here.
Abanukam does not dispute the fact that he was confined within the Northern District of
Texas at the time he filed his habeas petition in that court. (Doc. 8-1, pp. 1-2). Therefore,
jurisdiction was proper in the Northern District of Texas; indeed, that was the only court where
Abanukam could have sought habeas relief in December 2020. See Rumsfeld v. Padilla, 542 U.S.
426, 440-41 (2004) (the only proper place to file a habeas petition is in the district where the
detainee is confined at the time of filing, and where his/her immediate custodian is located; citing
Ex parte Mitsuye Endo, 323 U.S. 283, 306 (1944)).
Relevant to Abanukam’s case, Padilla and Endo instruct that even where the government
moves a habeas petitioner to another jurisdiction, the District Court where the habeas action was
properly filed retains jurisdiction over the case. The judge in Abanukam’s pending Texas habeas
case reached the same conclusion in denying Abanukam’s motion to transfer his case to this Court.
(Doc. 18 in Abanukam v. Barr, et al., Case No. 20-cv-252-C (May 24, 2021, N.D. Tex.)). Further,
if the Texas court decides to grant Abanukam’s petition, it has the power to order any Respondent
who is within reach of the court’s process and has custody of Abanukam to release him. See

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Padilla, 542 U.S. at 441 n.14 (quoting Endo, 323 U.S. at 307).
Abanukam’s argument that this Court has jurisdiction over his habeas Petition and should
allow him to proceed in this case are unavailing in light of his ongoing Texas habeas case. (Doc.
12, pp. 2-3). The location of Abanukam’s immigration proceedings in Chicago is not the factor
that determines where he should pursue federal habeas corpus relief. Moreover, this Court has no
power to dismiss Abanukam’s habeas case in the Northern District of Texas as he requests.
Abanukam also does not dispute Respondents’ contention that this action is duplicative of
the claims he raised in the Texas habeas petition. Abanukam relied on a due process claim for
release based on prolonged detention in the Texas action and he brings the identical claim here.
(Doc. 8-1, pp. 12-27; Doc. 1, pp. 2, 12-16, 19-21). He also argued that he was entitled to a bond
hearing under 8 U.S.C. § 1226(c) (Doc. 8-1, pp. 6-12), and seeks the same relief in this Court.
(Doc. 1, pp. 2, 20, 22). The duplicate nature of these core habeas claims, and considerations of
judicial economy, lead the Court to conclude that dismissal is warranted.
A federal court may dismiss a suit “for reasons of wise judicial administration whenever it
is duplicative of a parallel action already pending in ... federal court.” Serlin v. Arthur Andersen &
Co., 3 F.3d 221, 223 (7th Cir. 1993) (quoting Ridge Gold Standard Liquors v. Joseph E. Seagram,
572 F. Supp. 1210, 1213 (N.D. Ill. 1983)); see also Colorado River Water Conservation District
v. United States, 424 U.S. 800, 817 (1976). Lawsuits are generally duplicative if the “claims,
parties, and available relief do not significantly differ between the two actions.” Serlin, 3 F.3d at
223 (quoting Ridge Gold, 572 F. Supp. at 1213); see also McReynolds v. Merrill Lynch Co. Inc.,
694 F.3d 873, 888-89 (7th Cir. 2012). In this instance, the habeas claims and available relief are
identical, with the exception that in this Court, Abanukam added a challenge to his detention on
the basis that he was not immediately detained by ICE following his release from criminal custody.

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However, that is an argument that was available to Abanukam when he filed his Texas habeas
petition. His choice not to raise that argument before the Texas court does not sufficiently
distinguish the two actions or alter the Court’s conclusion that they are duplicates.
The only other arguable difference between the cases is that Abanukam includes claims in
the instant Petition for release from custody based on allegedly unconstitutional conditions of
confinement at Pulaski.2 But claims of inadequate medical care, lack of access to exercise, and
related matters are ordinarily raised in a civil rights action brought pursuant to 42 U.S.C. § 1983,
and Respondents’ argument that these issues are not cognizable in a habeas action is well taken.
See Glaus v Anderson, 408 F.3d 382, 386-87 (7th Cir. 2005). Abanukam is not without a remedy
for the alleged unconstitutional conditions. He is free to file a civil rights action in this Court
regarding conditions at Pulaski even if his habeas case is dismissed. That said, this Court makes
no comment on the potential merits of such an action.
Finally, the parties in both actions are virtually identical. In the Texas case, Abanukam
names as Respondents the U.S. Attorney General, the Secretary of the Department of Homeland
Security, and the ICE Field Office Director for the place of his confinement. In the instant case,
Abanukam named the same parties and added the Acting Director of U.S. ICE. In the Texas
petition, Abanukam did not include the warden of the Texas detention center as a Respondent.
Here, he includes Pulaski Warden Acuff, his immediate custodian. In both cases, the parties who
would be required to implement any order for release are included and they would carry out any
relief ordered by a court in their official capacities. There is no significant difference in the
Respondents in the two actions.

The Court notes that as part of his due process argument in the Texas petition, Abanukam asserted the
conditions of his confinement in the Texas detention center weighed in favor of granting him release from
custody. (Doc. 8-1, p. 17).
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Before dismissing a case as duplicative, “the district judge should consider any special
factors counseling for or against the exercise of jurisdiction in the case before him.” Serlin, 3 F.3d
at 224 (citing Calvert Fire Insurance Co. v. American Mutual Reinsurance Co., 600 F.2d 1228,
1234 (7th Cir. 1979)). Abanukam argues that because his immigration case will be heard in
Chicago, this Court is the proper forum to adjudicate his habeas claims. However, as discussed
above, the Northern District of Texas retains jurisdiction over Abanukam’s earlier-filed habeas
petition filed there. The location of the immigration proceedings does not amount to a “special
factor” that would justify allowing this duplicate case to proceed. Further, Respondents point out
that Abanukam’s Texas case has been fully briefed on the core habeas claims of due
process/prolonged detention and entitlement to a bond hearing, and is ripe for a decision in that
district. This Court will not expend its limited resources on adjudicating this duplicative case when
Abanukam’s identical claims will be addressed by the Northern District of Texas. Judicial
economy points to dismissal of this action.
Disposition
IT IS HEREBY ORDERED that the Respondents’ Motion to Dismiss Petition (Doc. 8)
is GRANTED. The Emergency Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(Doc. 1) is DISMISSED. However, the dismissal is without prejudice to Abanukam pursuing his
habeas corpus claims in his pending action in the Northern District of Texas, Abanukam v. Barr,
et al., Case No. 20-cv-252-C, and without prejudice to any suit he may bring regarding his
conditions of confinement.
The Clerk of Court is DIRECTED to close this case and enter judgment accordingly. The
Clerk is further DIRECTED to transmit a copy of this Order to the Clerk of Court for the Northern
District of Texas, Abilene Division, for filing or reference in Abanukam v. Barr, et al., Case No.

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20-cv-252-C (N.D. Tex.).
If Abanukam wishes to appeal this dismissal, his notice of appeal must be filed with this
court within 60 days of the entry of judgment. FED. R. APP. P. 4(a)(1)(B). A motion for leave to
appeal in forma pauperis (“IFP”) must set forth the issues he plans to present on appeal. See FED.
R. APP. P. 24(a)(1)(C). If Abanukam does choose to appeal and is allowed to proceed IFP, he will
be liable for a portion of the $505.00 appellate filing fee (the amount to be determined based on
his inmate trust fund account records for the past six months) irrespective of the outcome of the
appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 72526 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to Federal Rule of Civil
Procedure 59(e) may toll the 30-day appeal deadline. FED. R. APP. P. 4(a)(4). A Rule 59(e) motion
must be filed no more than twenty-eight (28) days after the entry of the judgment, and this 28-day
deadline cannot be extended. It is not necessary for Abanukam to obtain a certificate of
appealability. Walker v. O’Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: 7/14/2021
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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