Nelson v. Hodgson et al

Filing 10

Judge Denise J. Casper: MEMORANDUM AND ORDER entered denying 9 Motion to Stay deportation. The petition for a writ of habeas corpus is DENIED, and this action is DISMISSED in its entirety. (PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
BEVERLY ELAINE NELSON
)
)
Petitioner,
)
)
v.
)
Civil Action No. 14-10234-DJC
)
THOMAS M. HODGSON, SHERIFF, et al.,
)
)
Respondents.
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.

May 27, 2014

For the reasons set forth below, the Court denies the motion to stay deportation, denies the
petition for a writ of habeas corpus and dismisses this action.
BACKGROUND
Beverly Elaine Nelson (“Nelson”), an immigration detainee housed at the Bristol County
House of Correction, filed a forty-three page pleading1 “in the nature of a writ of habeas corpus” on
January 30, 2014. D. 1. A search of the federal Judiciary's Public Access to Court Electronic
Records (PACER) service reveals that Nelson was found guilty, after a jury trial in the District of
Maryland, of reentry of a deported alien after an aggravated felony conviction and was sentenced
to 27 months imprisonment. United States v. Nelson, Criminal No. AW-12-61 (D. Md. ), aff’d ,
No. 12-4917 (4th Cir. Jun. 13, 2013).

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The pleading is entitled “TAKE JUDICIAL NOTICE AND ADMINISTRATIVE
NOTICE; IN THE NATURE OF A WRIT OF HABEAS CORPUS, A DEMAND FOR
DISMISAL FOR FAILURE TO STATE THE PROPER JURISDICTION AND VENUE/AND
TO DISCHARGE AND RELEASE PETITIONER.” D. 1.
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This habeas action was commenced one week after Nelson’s release from custody of the
Federal Bureau of Prisons (“BOP”). http://www.bop.gov/inmateloc (last visited Apr. 2, 2014). She
was apparently transferred from BOP custody into the immigration detention system and is now
detained at the Bristol County House of Correction and Jail. On April 30, 2014, Nelson filed a
Motion to Stay Deportation. D. 9.
As best can be gleaned from the petition and accompanying exhibits, Nelson challenges (1)
the deportation order of the immigration court in Arlington, Virginia, as well as (2) the criminal
conviction and sentence entered by the United States District Court for the District of Maryland.
Specifically, Nelson seeks an “Order Dismissing Case Nos. 8:12-CR-0061 [and the immigration
action] for lack of Jurisdiction of the Subject Matter.” D. 1 at page 5.
As to the United States District Court, Nelson argues that it “is not a true United States court
established under Article III of the Constitution to administer the judicial power of the United States
therein conveyed.” Id. at p. 37.

As to the immigration court, Nelson argues that it “lacked

jurisdiction of the subject matter [and is not an Article II court with] authority by Congress to rule
on constitutional issues as or cases such as Petitioner’s, but [is an administrative court] governed
by the APA with limited power.” Id. at p. 40.
Because Nelson is proceeding pro se, her pleadings are construed liberally. See e.g. Haines
v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); United States v. Ciampi, 419
F.3d 20, 24 (1st Cir.2005); Prou v. United States, 199 F .3d 37, 42 (1st Cir.1999).
I.

Nelson’s Challenge to Immigration Removal Proceedings

To the extent Nelson seeks judicial review of the immigration judge’s order of removal, such
review is governed by section 242 of the Immigration and Nationality Act (INA), as amended by

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the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 U.S.C. §
1252. Under the Real ID Act, Pub.L. No. 109–13, 119 Stat. 231, 302 (2005), this court is without
jurisdiction to entertain a challenge to a removal order or to the execution of a removal order. See
8 U.S.C. § 1252(a)(5) (providing that “a petition for review filed with an appropriate court of
appeals in accordance with this section shall be the sole and exclusive means for judicial review of
an order of removal ....”); 8 U.S.C. § 1252(g) (except as provided for in the statute, “no court shall
have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision
or action by the Attorney General to ... execute removal orders ....”).
The Real ID Act “deprives the district courts of jurisdiction in removal cases.” Ishak v.
Gonzales, 422 F.3d 22, 27–28 (1st Cir. 2005). Section 1252(a)(5) explains, in no uncertain terms,
that:
Notwithstanding any other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus provision, ... a petition for
review filed with an appropriate court of appeals in accordance with this section
shall be the sole and exclusive means for judicial review of an order of removal
entered or issued under any provision of this chapter, except as provided in
subsection (e) of this section.
8 U.S.C. § 1252(a)(5) (emphasis added).
Thus, this court lacks authority to issue a stay of deportation. The provisions of the Real ID
Act preclude this court from entering an order staying petitioner’s removal. See e.g., Scott v.
Napolitano, 618 F. Supp. 2d 186, 191 (E.D.N.Y. 2009) (the "provisions of § 1252 operate to strip
district courts of jurisdiction to stay an order of removal, as well"); Tejada v. Cabral, 424 F. Supp.
2d 296, 298 (D. Mass. 2006) (even when a district court has jurisdiction over a habeas petition
challenging an underlying state criminal conviction, a petitioner in immigration detention must
"request a stay of his order of removal from the appropriate court of appeals").
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Even if some of Nelson's claims concerning the immigration proceedings are distinct from
a challenge to a removal order, the Court is still without subject-matter jurisdiction over her claims.
In enacting 8 U.S.C. § 1252(b)(9), Congress attempted to direct challenges to removal proceedings
through defined administrative channels. This statute, entitled “consolidation of questions for
judicial review,” states in part:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any
action taken or proceeding brought to remove an alien from the United
States ... shall be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under Section 2241 of Title 28 or any other
habeas corpus provision ... or by any other provision of law (statutory or
nonstatutory), to review such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9). Thus, where a claim concerning a removal proceeding can “effectively be
handled through the available administrative process,” it is subject to the limitations on judicial
review set forth in § 1252(b)(9). Aguilar v. U.S. Immig. & Customs Enf. Div. of the Dep’t of
Homeland Sec., 510 F.3d 1, 11 (1st Cir. 2007).
III.

Nelson’s challenge to her criminal conviction and sentence

Under 28 U.S.C. § 2255, a federal prisoner who claims that her “sentence was imposed in
violation of the Constitution or laws of the United States” may “move the court which imposed the
sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). It is well settled that
a prisoner must pursue a collateral attack pursuant to § 2255 before the sentencing court rather than
through a § 2241 habeas petition in the district in which she is incarcerated. United States v. Barrett,
178 F.3d 34, 50 n.10 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000); see Rogers v. United
States, 180 F.3d 349, 357 n.15 (1st Cir. 1999) cert. denied, 528 U.S. 1126 (2000) (motion under §
2255 is the “exclusive remedy in the sentencing court for any errors occurring at or prior to
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sentencing, including construction of the sentence itself”); Gonzalez v. United States, 150 F. Supp.
2d 236, 241 (D. Mass. 2001). Section 2255 relief is available when a petitioner demonstrates that
her sentence “(1) was imposed in violation of the Constitution, or (2) was otherwise subject to
collateral attack.” Moreno-Morales v. United States, 334 F.3d 140, 148 (1st Cir. 2003) (citing Davis
v. United States, 134 F.3d 470 (1st Cir. 1988)).
A federal prisoner cannot challenge the legality of her sentence through an application for
a writ of habeas corpus under 28 U.S.C. § 2241 unless it appears that a § 2255 motion is “inadequate
or ineffective to test the legality of his detention.”2 28 U.S.C. § 2255(e); see also Barrett, 178 F.3d
at 38 (explaining that a federal prisoner “cannot evade the restrictions of § 2255 by resorting to the
habeas statute, 28 U.S.C. § 2241, or the All Writs Act, 28 U.S.C. § 1651), cert. denied, 528 U.S.
1176 (2000).
Courts only allow recourse to the savings clause “in rare and exceptional circumstances,”
such as those where the restrictions on § 2255 motions would result in a “complete miscarriage of
justice.” Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008) (quoting in part In re Dorsainvil,
119 F.3d 245, 251 (3d Cir. 1997)). “Most courts have required a credible allegation of actual
innocence to access the savings clause.” Id.; see Barrett, 178 F.3d at 52-53 (discussing availability
of § 2241 where a petitioner claims “actual innocence”).

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The savings clause states, in relevant part:

An application for a writ of habeas corpus...shall not be entertained if it appears
that the applicant has failed to apply for relief, by motion, to the court which
sentenced him, or that such court has denied him relief, unless it also appears that
the remedy by motion is inadequate or ineffective to test the legality of detention.
28 U.S.C. § 2255.
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Here, Nelson has not attempted to show that she satisfied this exception as to allow for the
filing of the petition under § 2241 and the Court cannot ascertain any credible reason why a motion
under § 2255 would be ineffective or inadequate.

Nelson has not raised any exceptional

circumstances showing that it would be a complete miscarriage of justice if she was not permitted
to bring a § 2241 petition. Therefore, this Court lacks jurisdiction to entertain Nelson’s habeas
challenge to her federal conviction and sentence. See Heredia v. Grondolsky, 2012 WL 5932061
(D. Mass. 2012) (“find[ing] that the instant case seeks Section 2255 relief through a Section 2241
petition, and that Section 2255 is not an inadequate or ineffective remedy to test the legality of
petitioner’s detention. Consequently, this Court lacks jurisdiction to consider petitioner’s habeas
challenges under Section 2241”). see also Owens v. Jett, 2011 WL 4860171, *3 (D. Minn. 2011)
(court lacks jurisdiction over § 2241 petition unless petitioner shows that the § 2255 remedy is
inadequate or ineffective).
ORDER
Accordingly, it is hereby ORDERED that the motion to stay deportation (D. 9) is DENIED,
the petition for a writ of habeas corpus (D. 1) is DENIED, and this action is DISMISSED in its
entirety.

SO ORDERED.
/s/ Denise J. Casper
Denise J. Casper
United States District Judge

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