NORIEGA v. MAIN, Ph.d et al

Filing 13

MEMORANDUM/ORDER that the Amended Petition, ECF No. 11, is hereby DISMISSED without prejudice for lack of jurisdiction; denying as moot 12 Motion to Amend/Correct; that to the extent the deficiencies identified by this Court can be cured, Plaintif f is hereby granted thirty (30) days from the date of entry of this Memorandum and Order in which to file an amended complaint that cures the pleading deficiencies set forth; that the Clerk shall serve this Order upon Petitioner by regular mail, and shall CLOSE the file. Signed by Judge Claire C. Cecchi on 10/27/16. N/M (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ANIBAL NORIEGA,
Civil Action No. 14-2566 (CCC)
Petitioner,
v.

:

MEMORANDUM AND ORDER

MERRILL MAIN, Ph.D., et al.,
Respondents.

This matter having come before the Court on a Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. §2254 by Petitioner Anibal Noriega. It appearing:
1. Petitioner is an involuntarily committed individual in the State of New Jersey under the
New Jersey Sexually Violent Predator Act. (ECF No. I at 1.) In the original Petition, Petitioner
raised two grounds for relief: (1) counsel provided ineffective assistance in failing to appeal the
denial of transfer; and (2) state court erred in denying to transfer him into the custody of federal
immigration officials for removal purposes. (Id. at 17-20.)
2. The Court previously dismissed the Petition on screening, holding that it has no jurisdiction
to adjudicate Petitioner’s claims, because “Petitioner’s request for transfer appears unrelated to the
very fact or duration of his confinement by the state or to his level of custody.” (ECF No. 7 at 4.)
The Court allowed Petitioner to amend the Petition to the extent he seeks to challenge the validity
of his state confinement. (Id. at 6.)
3. Presently before the Court is Petitioner’s Amended Petition.

(ECF No. 11.)

Upon

reviewing the Amended Petition, the Court has determined that Petitioner raises virtually the same

allegations in the Amended Petition as he did in the original Petition.1 (Compare ECF No. 1 at
17-20 with ECF No. 11 at 16-19.) As such, the Amended Petition is dismissed for lack of
jurisdiction for the reasons stated in the Court’s previous opinion. (ECF No. 7.)
4. The Court has also reviewed Petitioner’s brief in support of the Amended Petition to see if
any additional claims have been made. Petitioner argues that his rights under the Equal Protection
Clause of the Constitution were violated because the state court had granted the requests of other
involuntarily committed individuals to be transferred to Immigration and Customs Enforcement
(“ICE”) custody for the purposes of deportation, while denying his transfer request. To establish
a valid Equal Protection claim, a petitioner must show that he is either a member of a protected
class, or that he “has been intentionally treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.” Viii. of Witiowbrook v. Olech, 528 U.s.
562, 564 (2000); see PG Pub. Co. v. Aichele, 705 F.3d 91, 114 (3d Cir. 2013).
5. In the Amended Petition, Petitioner alleged, as he had in his original Petition, that “it is
inexplicable as to why the State has released other SVP residents into the custody of ICE, three (3)
or four (4) times before and under an active immigration detainer, then refuse to do so in
Petitioner’s case.” (ECf No. 11 at 19.) Petitioner appears to make this allegation based on the
statements made by the state court during his transfer hearing. (ECF No. 1-1 at 33.) The Court
has reviewed said transcript, and this is the state court’s statement: “{A]ll of the prior instances

It appears that the only change Petitioner made between the original Petition and the
Amended Petition was to rename his second ground for relief. Whereas the second ground for
relief in the initial Petition was “{t]he trial court erred when it denied Petitioner’s motion for order
transferring custody to ICE,” the second ground for relief in the Amended Petition reads, “Denial
of Equal Protection and Due Process of Law: Motion for Order Transferring Custody to ICE.”
(Compare ECF No. 1 at 18 with ECF No. 11 at 17.) Despite this heading change, Petitioner did
not substantively change the allegations and, as with the first ground for relief, used identical
language from his prior Petition in its entirety without alteration.
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where people have been turned over to Immigration via

—

or by a consent order, and we’ve only

done it probably three or four times in the past.” (Id.) Petitioner does not identify these individuals
or state how their situations compare to his. To the extent Petitioner is alleging that this statement
shows there are individuals who are situated similarly to him, each decision to transfer these other
individuals would have been determined by the state court on individual factors and histories;
without information about these individuals, the Court cannot determine whether any are situated
similarly to Petitioner. See Faruq v. McCollum, No. 11-5987, 2013 WL 3283942, at *5 (D.N.J.
June 25, 2013) (granting defendants’ motion to dismiss on plaintiffs claim that he was treated
differently than other inmates, holding that “with regard to security level and placement decisions
that are based on individual factors and histories, it is hard to imagine that any inmate would be
considered similarly situated”); see also Thorne v. Chairperson Fla. Parole Comm ‘ii, 427 F. App’x
765, 771 (11th Cir. 2011) (dismissing plaintiffs claim that he was treated differently than other
prisoners because he failed to establish that other prisoners were similar to him in all relevant
respects); Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1219 (10th Cir. 2011) (finding
that Twombly and Iqbat require a plaintiff to “allege, as it must, the identity or characteristics of
other, similarly situated [individuals] and how those similarly situated [individualsJ were treated
differently” in order to state a valid equal protection claim) (quoting Glover v. Mabrey, 384 F.
App’x 763, 778 (10th Cir. 2010)). The state court appears to distinguish these cases of transfer
from State custody to ICE custody as being accomplished via consent order, whereas in
Petitioner’s case, the State opposed transfer. (ECF No. 1-1 at 33.) The State opposed the motion
for transfer partly because Petitioner had once before been deported, but subsequently reentered
the country illegally and committed another crime upon his return. (Id.) Under these facts, the
Court finds that Petitioner has failed to allege that he is similarly situated as other involuntarily

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committed individuals requesting transfer from State custody to ICE custody. As such, the Court
rejects Petitioner’s Equal Protection argument.
6. Petitioner also argues that his due process rights were violated because “[a]lthough
Petitioner’s term of imprisonment had clearly expired, he was not released into the custody of ICE.
Instead, counsel, for Respondent, instituted civil commitment proceedings against Petitioner,
under the guise of N.J.S.A.

§ 30:4-27.24 to -27.38.” (ECF No. 11-1 at 20.) He further argues

that “[d]ue process of law required the State to relinquish its custody over Petitioner, once his term
of incarceration concluded[.]” (Id.) However, Petitioner cites to no authority stating that an
immigration detainer, as a matter of law, supersedes a valid state court order for involuntary
commitment, or that the State is required to relinquish its custody.2 Even assuming such authority,
there is no challenge from Petitioner or immigration officials regarding the validity of the state
court order. By contrast, the record shows that immigration officials consented to the involuntary
commitment, and agreed to take Petitioner into custody only after his release by the State. (ECF
No. 1-1 at 33.) This Court has no authority to review that discretionary decision. See 8 U.S.C.
1226(e) (“No court may set aside any action or decision by the Attorney General.

.

.

§

regarding the

detention or release of any alien[.]”). In other words, neither the state officials nor the immigration
officials objected to Petitioner’s involuntary commitment, and Petitioner does not allege that his

2

Petitioner cites to cases from this district in support of his argument. (See ECF No. 11-1
at 19-20.) However, none of these cases stands for the proposition that an immigration detainer
would prohibit state custody under an involuntary commitment order. Diarrassouba v. United
States, No. 12-2257, 2014 WL 546341 (D.NJ. Feb. 10, 2014) (dismissing Petitioner’s habeas
petition for lack ofjurisdiction, as Petitioner was not “in custody” on the underlying conviction at
the time he filed); Cena v. Hollingsworth, No. 13-4489, 2013 WL 4039024 (D.N.J. Aug. 7, 2013)
(dismissing Petitioner’s habeas petition to suspend deportation proceedings for lack of
jurisdiction); Martinez v. Holder, No. 14-4255, 2014 WL 3519106 (D.N.J. July 16, 2014)
(dismissing Petitioner’s habeas petition challenging his future deportation proceedings for lack of
jurisdiction).
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involuntary commitment order was somehow invalid. As the Court
held earlier, Petitioner does
not have a constitutional right to a transfer.3 (See ECF No. 7 at 4.)
7. As to Petitioner’s ineffective assistance of counsel claim, the Court
addressed this issue in
its previous decision. (See ECF No. 7.) Petitioner has not alleged new
facts. (Compare ECF No.
1 at 17-19 with ECF No. 11 at 16-18.) for this claim, Petitioner must
allege that had counsel
provided effective assistance, the outcome of this case would have
been different. See Strickland
v. Washington, 466 U.S. 668, 686 (1984). Petitioner appears to challen
ge only the outcome of the
motion for transfer. (ECF No. 16-18.) Because it appears that Petitio
ner did not challenge the
validity of his state confinement or allege that the failure to appeal the
transfer denial affected the
fact or duration of his confinement, his claim would necessarily fail.
Moreover, construing
Petitioner’s request for transfer as a request for post-conviction relief,
his ineffective assistance
claim would fail because Petitioner does not have a constitutional
right to counsel in postconviction proceedings. 28 U.S.C.

§ 2254(i) (“[t]he ineffectiveness or incompetence of counsel

during Federal or State collateral post-conviction proceedings shall
not be a ground for relief in a
proceeding arising under section 2254.”); Coleman v. Thompson,
501 U.S. 722, 752 (1991)
(“There is no constitutional right to an attorney in state
post-conviction proceedings.
Consequently, a petitioner cannot claim constitutionally ineffective
assistance of counsel in such
proceedings.”); United States v. Doe, No. 13-4274, 2015 WL 828785
8, at *15 (3d Cir. Dec. 9,
2015) (precedential).
IT IS therefore on this

day of

0 C..40

-/

,2016,

See 8 U.S.C. § 123 1(a)(4)(D) (“No cause or claim maybe asserted.
against any official
of the United States or of any State to compel the release, removal,
or consideration for release or
removal of any alien.”); Gonzalez v. United States, No. 06-0117, 2010
WL 1660268, at * 1 (D.N.J.
Apr. 22, 2010) (“No private right of action exists that would permit
Gonzalez to compel the
Attorney General to deport him.”).
.

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.

ORDERED that the Clerk shall REOPEN the case by making a new and separate docket

entry reading “CIVIL CASE REOPENED”; it is further
ORDERED that the Amended Petition, ECF No. 11, is hereby DISMISSED without
prejudice for lack ofjurisdiction; it is further
ORDERED that Petitioner’s motion to amendlsubstitute respondents, ECF No. 12, is
hereby DENIED as moot; it is further
ORDERED that to the extent the deficiencies identified by this Court can be cured,
Plaintiff is hereby granted thirty (30) days from the date of entry of this Memorandum and Order
in which to file an amended complaint that cures the pleading deficiencies set forth; and it is
further
ORDERED that the Clerk shall serve this Order upon Petitioner by regular mail, and shall
CLOSE the file.

(..

C

Claire C. Cecchi, U.S.D.J.

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