Gathiru v. Dunning et al

Filing 3

ORDER that the Court will give the Petitioner an opportunity to amend his petition. If he does not file an amended petition by June 5, 2017, the Court may dismiss this case without further notice. Ordered by Judge Robert F. Rossiter, Jr. (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PETER GATHIRU,
Petitioner,

8:17CV150

vs.
ORDER
TIMOTHY DUNNING, Sheriff of Douglas
County; JOHN KELLY, Secretary of the
Department of Homeland Security; JEFF
SESSIONS, Attorney General of the United
States; SCOTT BANIECKE, Field Office
Director of Immigration Customs and
Enforcement; and THOMAS HOMAN,
Director of Immigration Customs and
Enforcement;
Respondents.
This matter is before the Court on petitioner Peter Gathiru’s (“Gathiru”) Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Filing No. 1). Gathiru, a
native and citizen of Kenya who entered the United States as a visitor in 2004 and
overstayed his visa, reports “Immigration Customs and Enforcement (“ICE”) of the
Department of Homeland Security (“DHS”) has detained [him] since August 18, 2014
pursuant to a final order of removal, dated October 10, 2006 and the Ninth Circuits [sic]
mandate issued May 18, 2015.” Stating the respondents are presently detaining him “at
the Douglas County Jail in Omaha Nebraska,” Gathiru asks the Court “to remedy his
unlawful detention.”
In his petition, Gathiru acknowledges he previously filed a Petition for Writ of
Habeas Corpus in the District of Minnesota requesting the same relief while he was
detained at a facility in Minnesota. On October 28, 2016, District Judge David S. Doty
dismissed that petition without prejudice, finding Gathiru’s detention was not

unreasonable but urging the government to “expedite his removal.” “[F]irmly convinced
that Gathiru’s claim [wa]s baseless, and that reasonable jurists could not differ,” Judge
Doty denied Gathiru a certificate of appealability. Gathiru did not appeal. See 28 U.S.C.
§ 2253.
Gathiru filed the present petition on May 1, 2017. The petition includes a proof of
service averring Gathiru served his petition and supporting documents on the respondents
by mail on April 27, 2017. The respondents have not responded to the petition.
Gathiru’s current petition presents a question of finality.

Under 28 U.S.C.

§ 2244(a), this Court is not “required to entertain an application for a writ of habeas
corpus to inquire into the detention of a person pursuant to a judgment of a court of the
United States if it appears that the legality of such detention has been determined by a
judge or court of the United States on a prior application for a writ of habeas corpus.”
Beyond relating that Gathiru has been transferred to a detention facility in Omaha and
still has not been removed to Kenya despite his purported cooperation with U.S. and
Kenyan officials, Gathiru’s petition essentially raises the same issues and arguments
recently considered and rejected by Judge Doty.
Although this Court tends to agree with Judge Doty that “[t]he longer Gathiru is
detained, the less reasonable his detention becomes,” see, e.g., Zadvydas v. Davis, 533
U.S. 678, 701 (2001), to this point, Gathiru has not given the Court a compelling reason
to reevaluate his detention at this time, particularly given his decision not to appeal. Still,
in light of the stakes, the Court will give Gathiru an opportunity to amend his petition to
demonstrate, if possible, that the circumstances of his detention have sufficiently changed
to warrant a second look at this time. Based on the record before the Court, the passage
of a few months alone is unlikely to do the trick. See 8 U.S.C. §§ 1231(a)(6), 1537(b);
Zadvydas, 533 U.S. at 690-91, 700-01. If Gathiru is unable to demonstrate his detention
has become unreasonable since Judge Doty’s well-reasoned decision or does not file an

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amended petition by June 5, 2017, the Court may dismiss this case without further notice.
See 28 U.S.C. §§ 2243, 2244(a).
IT IS SO ORDERED.
Dated this 25th day of May, 2017.
BY THE COURT:
s/ Robert F. Rossiter, Jr.
United States District Judge

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