BROWNE v. TAYLOR et al
OPINION. Signed by Judge Susan D. Wigenton on 03/23/2017. (ek)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
DERICK PERRY BROWNE,
Civil Action No. 17-1537 (SDW)
ERIC TAYLOR, et al.,
WIGENTON, District Judge:
Presently before the Court is the petition for a writ of habeas corpus of Petitioner, Derick
Perry Browne, filed pursuant to 28 U.S.C. § 2241. (ECF No. 1). Because Petitioner has paid the
appropriate filing fee, this Court is required to screen the petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases, applicable to § 2241 petitions through Rule 1(b), and determine
whether it “plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief.” For the reasons set forth below, this Court will dismiss the petition without
prejudice as premature.
Petitioner, Derick Perry Browne, is a native and citizen of Sierra Leone, who entered this
country and became a lawful permanent resident in 2000. (ECF No. 1 at 1). According to the
petition, Petitioner was ordered removed on April 11, 2012. (Id. at 3). Petitioner did not appeal
that removal order, and thus Petitioner essentially concedes that he has been subject to a final order
of removal since mid-2012. (Id.). Despite the four year old order of removal, Petitioner was
apparently not taken into custody until October 21, 2016. (Id.). He has apparently remained in
custody since that date. As of the date of this opinion, Petitioner has therefore been detained for
approximately five months.
A. Legal Standard
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is
currently detained within this Court’s jurisdiction, by a custodian within the Court’s jurisdiction,
and asserts that his continued detention violates due process, this Court has jurisdiction over his
claims. Spencer v. Lemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S.
484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001). ). Pursuant to
Rule 4 of the Rules Governing Section 2254 Cases, applicable to Section 2241 petitions through
Rule 1(b), courts are required to preliminarily review habeas petitions and determine whether it
“plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief.” Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856
In his petition, Petitioner contends that there is no reasonable likelihood of his removal in
the foreseeable future, and that he should therefore be entitled to release pursuant to the Supreme
Court’s opinion in Zadvydas. Because Petitioner concedes that he has been subject to a final order
of removal for the entirety of his current period of detention, his detention arises pursuant to 8
U.S.C. § 1231(a). As the Court explained in Zadvydas, § 1231(a) requires the Government to
detain all aliens subject to final orders of removal throughout the ninety day removal period
following a final order of removal. 501 U.S. at 683. The statute also provides the Government
with the authority to detain aliens beyond the removal period so long as the alien’s detention is
“reasonably necessary” to effectuate his removal from the United States. Id. at 689, 699. Having
considered the requirements and authority provided by § 1231, the Zadvydas Court held that an
alien may be held under § 1231(a) for a period of up to six months following his final order of
removal during which his continued detention will be presumed to be reasonable and not subject
to a habeas challenge. Id.at 701. Thus, where an alien has been held for less than six months
pursuant to a final order of removal, any challenge to his detention pursuant to Zadvydas will be
premature, and any such petition must be dismissed as such. Id. In this matter, Petitioner is
detained pursuant to § 1231 as he is subject to a final order of removal, and has been in detention
for only five months.
As Petitioner’s detention has therefore yet to crest the six month
presumptively reasonable period, his current challenge raised pursuant to Zadvydas is premature,
and must therefore be dismissed without prejudice at this time. Id.
For the reasons expressed above, this Court will dismiss Petitioner’s habeas petition as
premature. An appropriate order follows.
Dated: March 23, 2017
s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge
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