Taskov v. Sessions III et al
Filing
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ORDER denying 11 Motion for Hearing; Signed by Judge Richard F. Boulware, II on 1/9/2018.; Case dismissed for lack of jurisdiction. Certificate of Appealability is denied. (Copies have been distributed pursuant to the NEF - JM)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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DRAGOMIR TASKOV,
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Petitioner,
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vs.
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Case No. 2:17-cv-01587-RFB-PAL
JEFFERSON B. SESSIONS, et al.,
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ORDER
Respondents.
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Petitioner has paid the filing fee. The court has reviewed his petition for a writ of habeas corpus,
and the court will dismiss it. See 28 U.S.C. § 2243.
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In United States v. Taskov, Case No. 2:10-cr-00217-RFB-PAL, petitioner was convicted of two
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counts of receipt of converted and fraudulently taken property and aiding and abetting, one count of
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interstate transportation of converted and fraudulently taken property and aiding and abetting, and one
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count of mail fraud and aiding and abetting. Petitioner currently is pursuing a motion attacking his
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sentence under 28 U.S.C. § 2255 in that action.
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Based upon documents attached to the petition, petitioner is a Canadian citizen of Bulgarian
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birth. The Department of Homeland Security has at least started, if not concluded, deportation
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proceedings at the Immigration Court in Dallas, Texas, because petitioner has been convicted of
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aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii) and because he overstayed his permission to
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be in the United States under 8 U.S.C. § 1227(a)(1)(B). ECF No. 1-2, at 52-55, 70-72.
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The current petition under 28 U.S.C. § 2241 appears to contain challenges to both the
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deportation proceedings and to the criminal case. Grounds 1 and 2 clearly are challenges to the
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deportation proceedings, based upon petitioner’s claim that he is a lawful permanent resident of the
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United States. Ground 3 is a claim that petitioner was subject to unreasonable search and seizure.
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Ground 4 is a claim of ineffective assistance of counsel. Grounds 3 and 4 also appear to be related to
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petitioner’s deportation proceedings, because he argues that some of the documents seized, and to which
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he has no access, are relevant to his claim that he is a lawful permanent resident.
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To the extent that petitioner is raising challenges to his criminal case, he cannot raise them in
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a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. A motion attacking his sentence
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pursuant to 28 U.S.C. § 2255 is the correct way to present those challenges, and petitioner currently is
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pursuing such a motion. See 28 U.S.C. § 2255(e).
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To the extent that petitioner is raising challenges to his deportation proceedings, at the very least
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he has commenced this action in the wrong court. A habeas corpus petition must name as a respondent
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the person who has direct custody over petitioner, either the warden of the prison or other equivalent
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person, and it needs to be filed in the district where that custodian is located. When petitioner
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commenced this action, he was in custody in Cleburne, Texas, and he now is in custody in Okmulgee,
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Oklahoma. At no point during the pendency of this action was petitioner in custody within the District
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of Nevada. This court does not have jurisdiction over petitioner’s custodian. The correct venue now
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for a habeas corpus petition, if at all, would be in the United States District Court for the Eastern
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District of Oklahoma.
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Furthermore, no district court has jurisdiction to consider a habeas corpus petition. Petitioner
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invokes 8 U.S.C. § 1252(e)(2)(C). ECF No. 1-1, at 7. That statute provides:
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(e) Judicial review of orders under [8 U.S.C. §] 1225(b)(1) . . .
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(2) Habeas corpus proceedings
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Judicial review of any determination made under section 1225(b)(1) of this title is available in
habeas corpus proceedings, but shall be limited to determinations of--
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(A) whether the petitioner is an alien,
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(B) whether the petitioner was ordered removed under such section, and
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(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is
an alien lawfully admitted for permanent residence, has been admitted as a refugee under section
1157 of this title, or has been granted asylum under section 1158 of this title, such status not
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having been terminated, and is entitled to such further inquiry as prescribed by the Attorney
General pursuant to section 1225(b)(1)(C) of this title.
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Section 1225(b)(1) concerns the inspection of an alien who is arriving in the United States and the
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expedited removal of that alien if the immigration officer determines that the alien is inadmissible for
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misrepresenting material facts or for lacking the correct documents. Based upon the documents
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attached to the petition, § 1225(b)(1) and the judicial-review provision of § 1252(e)(2)(C) is
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inapplicable to petitioner. Petitioner is subject to deportation because he has been convicted of
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aggravated felonies under 8 U.S.C. § 1227. ECF No. 1-2, at 54, 70. Judicial review of that
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determination is available, if at all, through a petition for review filed with the court of appeals, and not
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through a petition for a writ of habeas corpus. 8 U.S.C. § 1252(a)(1), (g).1 Consequently, a transfer of
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this action to the Eastern District of Oklahoma would be futile. That court, like this court, lacks
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jurisdiction to consider petitioner’s deportation-related claims.
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To the extent that a certificate of appealability is necessary, reasonable jurists would not find
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the court’s conclusions to be debatable or wrong, and the court will not issue a certificate of
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appealability.
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Petitioner’s motion for evidentiary hearing (ECF No. 11) is moot because the court lacks
jurisdiction.
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IT IS THEREFORE ORDERED that the clerk of the court file the petition for a writ of habeas
corpus and exhibits, currently at ECF No. 1-1 and 1-2.
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IT IS FURTHER ORDERED that this action is DISMISSED for lack of jurisdiction. The clerk
of the court shall enter judgment accordingly and close this action.
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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
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///
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No judicial review is available for the determination that petitioner is deportable because he
has committed an aggravated felony, 8 U.S.C. § 1252(a)(2)(C), but the court of appeals still has
jurisdiction to review constitutional claims or questions of law, 8 U.S.C. § 1252(a)(2)(D).
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IT IS FURTHER ORDERED that petitioner’s motion for evidentiary hearing (ECF No. 11) is
DENIED as moot.
DATED: January 9, 2018
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_________________________________
RICHARD F. BOULWARE, II
United States District Judge
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