OJO v. RODRIGUEZ

Filing 27

OPINION. Signed by Chief Judge Jose L. Linares on 2/11/2019. (dam, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

OLUKAYODE 0.,

Civil Action No. 18-8725 (JLL)

Petitioner,
v.

OPINION

ORLANDO RODRIGUEZ,
Respondents.

LINARES, Chief District Judge:
Presently before the Court is the motion seeking reconsideration of the Court’s denial of

Petitioner Olukayode O.’s habeas petition brought pursuant to Rule 59(e) of the Federal Rules of
Civil Procedure, (ECF No. 19). For the following reasons, Petitioner’s motion is denied.

I. BACKGROUND

In this Court’s prior opinion denying Petitioner’s habeas petition, this Court summarized
the background of this matter as follows:
Petitioner is a native and citizen of Nigeria who entered the
United States on a non-immigrant visa in October 2010. (ECF No.
8—2 at 3). Although Petitioner was authorized to remain in the
United States only until April 2011, he did not leave when that
authorization expired. (ECF No. 8-2 at 3). During this period of
overstay, in July 2011, Petitioner was arrested on wire fraud
charges. (ECf No. 8-2 at 3). These charges resulted in Petitioner’s
February 27, 2014, conviction for conspiracy to commit wire fraud
and conspiracy to possess with intent to use unlawfully five or more
false ID documents in the Eastern District of New York. (ECF No.
8-2 at 3). While Petitioner’s appeal of that conviction was pending,
and thus while his conviction was not yet final for immigration
purposes, see Orabi v. Att’y Gen.. 73$ F.3d 535. 542 (3d Cir. 2014)
(conviction not final for immigration purposes until direct appeal
concluded), Petitioner was taken into irnmigi’ation ccistody on

March 14. 2014, and placed into removal proceedings based on his
overstaying his visa. (ECf No. 8-2 at 3).
On May 7, 2014, Petitioner appeared before an immigration
judge for a bond hearing. (ECf No. 8-8 at 3). At that hearing, the
immigration judge determined that Petitioner was held pursuant to
8 U.S.C. § 1226(a). and granted Petitioner bond in the amount of
$50,000. (ECF No. 8-8 at 3). Apparently unable to pay that bond,
Petitioner thereafter sought a bond redetermination, and the
immigration jLtdge lowered his bond to $22,500 in August 2014.
(ECf No. 8-8 at 3). Petitioner appealed, and the Board of
Immigration Appeals affirmed that bond amount. (ECF No. 8-8 at
3).
As he was still unable to pay this bond amount, and because
he otherwise believed he was then in custody based solely on his
conviction, which was still on direct appeal at the time, Petitioner
filed a petition for a writ of habeas corpus in this Coirt challenging
his § 1226(a) detention in December 2014. (Docket No. 14-7951,
ECF No. 1). On March 31, 2015, in lieu of a response to that
petition, the Government filed with this Court a joint stipulation of
dismissal in which the Government and Petitioner agreed to lower
Petitioner’s bond amount to an amount he could afford, and in
exchange Petitioner agreed to the dismissal of his habeas petition as
moot. (Docket No. 14-7951, ECF No. 7). This Court granted that
joint request for a dismissal that same day. (Docket No. 14-7951,
ECF No. 8). On April 7, 2015. Petitioner appeared for a new bond
hearing, during which the Government. pursuant to the joint
stipulation. agreed to a lower bond amount of $2,000. (ECf No. 88 at 4). Petitioner paid that amount and was released on bond. (ECF
No. 8-8 at 4). Petitioner remained on bond thereafter until April
2018.
While Petitioner was released on bond, his direct appeal of
his conviction proceeded. On November 19. 2015, however, the
Second Circuit affirmed Petitioner’s conviction. United Stcttes v.
Ojo, 630 F. App’x 83 (2d Cir. 2015). Petitioner thereafter sought
review from the Supreme Court, but his petition for certiorari was
denied on March 21, 2016. Ojo v. United States, 136 S. Ct. 1473
(2016). Petitioner’s fraud conviction therefore became final for
immigration purposes in March 2016.
Petitioner’s immigration proceedings thereafter continued.
On April 12, 2018. however, following a hearing in Petitioner’s
case, the Government amended its charges of removability against
Petitioner to include several charges based on his now final fraud
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convictions. (ECf No. 8-2 at 4). Based on that same final
conviction, Petitioner was once again taken into immigration
detention that same date, albeit this time pursuant to the mandatory
detention provision of $ U.S.C. § 1226(c). (ECF No. 8-2 at 4).
Petitioner thereafter appeared for another custody hearing in June
201 8, which resulted in bond being denied as an immigration judge
determined that Petitioner was subject to mandatory detention
pursuant to § 1226(c). (ECf No. 8-19). Petitioner has remained
detained since that time, and his removal proceedings are ongoing.

(ECF No. 16 at 1—3).

II. LEGAL STANDARD

The scope of a motion to amend a judgment pursuant to Rule 5 9(e) is extremely limited.
See Blvstone v. Horn, 664 f.3d 397, 415 (3d Cir. 2011). A Rule 59(e) motion maybe employed
“only to correct manifest errors of law or fact or to present newly discovered evidence.” Id.
“Accordingly, a judgment may be altered or amended [only] if the party seeking reconsideration
shows at least one of the following grounds: (1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the court [decided the motion], or (3)
the need to correct a clear error of law or fact or to prevent manifest injustice.” Ic!. (quoting
Howard Hess Dental Labs., Inc. v. Dentsplv Int’l Inc., 602 F.2d 237, 251 (3d Cir. 2010)). In this
context, manifest injustice “generally.., means that the Court overlooked some dispositive factual
or legal matter that was presented to it,” or that a “direct, obvious, and observable” error occulTed.

See Brown v. Zicke/bose, No. 11-3330, 2011 WL 5007829, at *2 n.3 (D.N.J. Oct. 1$, 2011)
(citations and quotation marks omitted)

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III. ANALYSIS
A. Stipulation of Dismissal

In his first set of claims, Petitioner reasserts his argument that the joint stipulation of
dismissal in his previous habeas matter should be binding

upon

should prevent him from being taken into custody under

§ 1226(c). (ECF No. 19-1 at

his current habeas petition and
2—3).

Petitioner bases this assertion on his apparent misunderstanding of the change in circumstances

of

the basis for his detention. In his motion, Petitioner asserts first that his previous habeas petition,
filed when Petitioner was detained pursuant to the Government’s discretionary detention authority

under

§ 1226(a), actually challenged his current period of mandatory detention under § 1226(c).

(ECf No. 19-I at 2—3). for obvious reasons, because Petitioner was detained pursuant to

§ 1226(a)

during the time when his previous petition was litigated, it could not have challenged Petitioner’s
mandatory detention pursctant to

§ 1226(c) as no such detention then existed. Likewise, the joint

stipLilation of dismissal could only have applied to Petitioner’s

§ 1226(a) detention as noted in the

Court’s previous opinion because that was the only form of detention to which Petitioner was
subject at the time the stipulation of dismissal was entered, and because the Government has no
authority to agree to a bond amount under

§ 1226(c). This Court thus did not overlook any relevant

fact in determining that the joint stipulation of dismissal applied only to Petitioner’s

§ 1226(a)

detention and that the stipulation has no effect upon Petitioner’s ccuient period of mandatory
detention.

Petitioner’s reliance on an order of this Court denying him pro bono counsel is misplaced.
Although this Court stated in that order that Petitioner’s previous habeas petition challenged
Petitioner’s mandatory detention pending removal, that statement was not a final determination
of the Court but rather a characterization of the argument Petitioner had presented based on the
incomplete factual background then available. (See Docket No. 14-7951, ECF No. 2), As
explained in this Court’s prior opinion, Petitioner was clearly subject to § 1226(a) detention at
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Petitioner also contends that this Court overlooked his argument that his previous petition,
filed when he was sLibject only to discretionary detention, was not moot and should control his
current period of mandatory detention. (ECF No. 19-1 at 3—6). Petitioner’s argument ignores the
fact that he himself agreed that his previous petition was moot in light of his having been given a
lower bond amount which resulted in his release on bond from discretionary detention, a point this
Court specifically noted in its previous opinion denying Petitioner’s habeas petition. (See ECF
No. 16 at 4). Thus, Petitioner is foreclosed from now arguing that his previous petition is not moot
by his own stipulation of dismissal. In any event, whether or not Petitioner’s prior challenge is
moot is immaterial, as the joint stipulation of dismissal did not foreclose Petitioner’s re-detention
under a different statutory authority following a change in circumstances, and could not have
controlled through silence mandatory detention which at the time did not exist. This Court thus
did not overlook or ignore any relevant factual or legal issue in finding that the joint stipulation of
dismissal has no effect upon Petitioner’s current detention, and relief under Rule 59(e) is not
appropriate on that basis.

B. Employment Authorization

Petitioner next contends that this Court’s denial of habeas relief ignored an argument which
he raised for the first time in his reply brief that the Government and immigration courts should be
foreclosed from finding that he was subject to an aggravated felony conviction because they issued
him a work authorization to which he should not have been entitled because of his aggravated
felony conviction. (ECF No. 19-1 at 7). Petitioner contends that the issuance of the authorization

the time of his previous petition, and that petition thus could not have challenged his current
period of detention under § 1226(c).
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should amount to a decision on the merits by the Government that Petitioner does not have an
aggravated felony conviction, and that the Government should therefore be coil aterally estopped
from arguing that Petitioner has such a conviction for removal proceedings. (ECF No. 19-1 at 7).
Because this argument was raised for the first time in reply, this Court was not required to consider
it in deciding Petitioner’s habeas petition. See Jttdge v. United Stcttes, 119 F. $upp. 3d 270, 284
(D.N.J. 2015) (party may not raise new factual or legal issues for the first time in reply brief, and
court need not consider any claim so raised). That the Court did not discuss or dwell on that
argttment in denying relief is thus no basis for relief under Rule 59(e).
Even were this Court to consider Petitioner’s argument, however, it must fail. As Petitioner

himself admits, issue preclusion based on collateral estoppel is appropriate only where an identical
issue was decided in a prior adjudication, there was a final judgment on the merits, the party against
whom the bar is asserted was a party or in privity to a party in the prior matter, and the parry
against whom the bar is asserted had a full and fair opportunity to litigate the isstie in question.
See, e.g., Bd. Of Trttstees of Trucking Enip!s. 0/N Jersey IVe!Jtre fund, Inc. v. Centrct. 983 F.2d
495, 505 (3d Cii-. 1992). Petitioner relies only upon the alleged issuance of an ernploynient
authorization. He does not allege that the issue was actually litigated or actually considered when
the authorization was issued.

Nothing Petitioner has submitted proves that the Government

considered and ultimately decided Petitioner was not guilty of an aggravated felony when the
authorization was issued. Thus. it is not clear that an identical issue was decided in issuing the
authorization, and this Court has no basis to conclude that there was a full and fair opportunity to
litigate the issue when the authorization was issued.

Collateral estoppel is inappropriate, and

Petitioner’s argument on that basis presents no valid basis for reconsideration under Rule 59(e).

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C. Loss Amount

Petitioner next retreads his arguments regarding loss amount and argues that this Court
should not have found his conviction to be for an aggravated felony because he contends his loss

amount was less than the necessary $10,000. (ECf No. 19-1 at 7—8). As this Court previotisly
explained:
The Third Circuit has held that wire fraud, the crime of which
Petitioner was convicted of conspiring to commit, “clearly involves

fraud or deceit” and thus “qualifies as an aggravated felony if the
loss to the victim or victims exceeds $10,000.” Doe v. Att Gen.,
659 F.3d 266, 274—75 (3d Cir. 2011) (internal quotations omitted).
As Petitioner has a final conviction for conspiracy to commit wire
fraud that included a loss amount of over $80,000, see Ojo, 630 F.
App’x at $6 (“the evidence [at Petitioner’s trial] established a loss
of approximately $80,000”), he has a qualifying aggravated felony
and was thus subject to detention pursuant to § 1226(c).
(ECf No. 16 at 5). Thus, on direct appeal, the Appellate Court directly found that Petitioner’s
crime caused a loss amount of over 80,000 based on the evidence presented at trial. Petitioner has
failed to present any infonnation sufficient to overcome that finding, and Petitioner’s conviction
was therefore an aggravated felony which subjected him to mandatory detention once it became
final. This Court did not overlook any dispositive issue of fact or law, and Petitioner’s loss amount
argument thus provides no valid basis for reconsideration.
* * *

This Court has considered all relevant legal and factual issues raised by the parties in
denying Petitioner’s habeas petition, and Petitioner has failed to show that this Court overlooked

any dispositive facts or issues. Petitioner has thus failed to show any basis for reconsideration
under Rule 59(e), and his motion must be denied.

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IV. CONCLUSION

for the reasons expressed above, this Court denies Petitioner’s Rule 59(e) motion. An
appropriate Order follows.

JOS/LINARES,
Cudge, United States District Court

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