Durant v. Deone et al
Filing
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Memorandum Opinion and Order dismissing Petitioner's petition for Writ of Habeas Corpus. An appeal from this decision may not be taken in good faith. Judge John R. Adams on 11/3/11. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
ROBERT K. DURANT
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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CASE NO. 3:11 CV1427
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION
AND ORDER
Before the Court is pro se Petitioner Robert Kerwin Durant’s Petition for a writ of habeas
corpus pursuant 28 U.S.C. §2241. Petitioner is being held in custody at the Seneca County Jail in
Tiffin, Ohio, pending deportation. He complains that his detention is unlawful because he is serving
a “double sentence.” Petitioner seeks immediate release during the pendency of his deportation
challenge. For the reasons set forth below, this action is dismissed.
Background
The Public Access to Court Electronic Records (PACER) reveals that a criminal complaint
was filed against Petitioner in 2008. See United States v. Durant, No. 0:08-mj-00540, (D. Minn.
filed Dec. 22, 2008). He was subsequently indicted in the United States District Court of Minnesota
on January 21, 2009, see United States v. Durant, No. 0:09cr0022, (D. Minn. filed Jan. 21, 2009),
and charged with bank robbery in violation of 18 U.S.C. § 2113(a)(1). On June 1, 2009, he pleaded
guilty to the charge and on January 22, 2010 was sentenced to 15 months imprisonment. Petitioner’s
term of imprisonment ended on February 16, 2011 and he was released from the Northeast Ohio
Correctional Center (N.E.O.C.C.) on that date.
Petitioner complains he was immediately taken into custody by the Immigration and Custody
Enforcement (ICE) agency after his release from N.E.O.C.C. Since then, he has filed an appeal to
the Board of Immigration Appeals (BIA), which is still pending. He does not detail the substance of
his appeal, but clarifies that he not challenging his pending deportation order.
Petitioner asserts he is being held without bond “for the same crime I committed in 2008.”
(Pet. at 2.) He asks to be released on bond during the pendency of his appeal to the BIA. He reasons
that because he was permitted to be released on bond during the pendency of his criminal case, the
same arrangement should apply while he is awaiting deportation. Beyond this declaration, Petitioner
does not address his pending deportation as cause for his continued confinement. As such, he argues
this Court should order his release on bond pending his appeal to the BIA.
Initial Review
This matter is before the court for initial screening. 28 U.S.C. § 2243; Harper v. Thoms, No.
02-5520 2002, WL 31388736, at *1 (6th Cir. Oct. 22, 2002). At this stage, allegations in the
petition are taken as true and liberally construed in Petitioner’s favor. Urbina v. Thoms, 270 F.3d
292, 295 (6th Cir. 2001). Considering Petitioner’s pro se status, his pleading is held to less stringent
standards than those drafted by attorneys. Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). For
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the reasons set forth below, however, the Petition lacks merit and is dismissed.
28 U.S.C. § 2241
A petition for a writ of habeas corpus under 28 U.S.C. § 2241 is limited to claims that the
petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). A habeas corpus proceeding therefore is the proper mechanism for a prisoner
to challenge the “legality or duration” of confinement. Preiser v. Rodriguez, 411 U.S. 475, 484
(1973).
For the court to assume jurisdiction over a habeas corpus petition it must have personal
jurisdiction over the petitioner’s custodian. Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484,
495 (1973). Although he is not named as respondent in this case, the warden at Seneca Jail is
Petitioner’s custodian and this Court has personal jurisdiction over him. See e.g., Vasquez v. Reno,
233 F.3d 688, 693 (1st Cir. 2000) (alien seeking writ of habeas corpus contesting legality of his
detention by Immigration and Naturalization Service (I.N.S.) was required to name as respondent
individual having day-to-day control over facility in which he was being detained, not Attorney
General, absent extraordinary circumstances). Accordingly, Petitioner’s request to be released on
bond from his present custodian is properly filed as a § 2241 petition in this Court. See Wright v.
United States Bd. of Parole, 557 F.2d 74, 76–77 (6th Cir. 1977).
Alien Detention
Contrary to Petitioner’s assertions, there are no facts alleged that support his claim of
unlawful detention. Once his prison term ended, Petitioner was taken into custody by immigration
authorities. By his own admission, a deportation order is pending. The detention of aliens subject
to final orders of removal is governed by section 241(a) of the Immigration and Nationality Act
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(INA). Section 241 provides that the Attorney General is required to remove an alien within a
90–day “removal period,” 8 U.S.C. § 1231(a)(1)(A); however, an alien found removable under 8
U.S.C. § 1227(a)(2), such as Petitioner, “may be detained beyond the removal period.”1 8 U.S.C. §
1231(a)(6). This is Petitioner’s current status.
Based on the foregoing, it is clear Petitioner is not unlawfully detained as punishment for his
bank robbery conviction. Instead, he is in the custody of immigration authorities awaiting
deportation. Because Petitioner has not challenged the reasonableness of his continued detention
based on a final order of deportation, this Court is not prepared to address an issue not squarely
before it. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)(legal conclusions
alone are not sufficient to present a valid claim, and this court is not required to accept unwarranted
factual inferences).
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The class of alien into which Petitioner falls is
Any alien who-(I) is convicted of a crime involving moral turpitude
committed within five years (or 10 years in the case of an
alien provided lawful permanent resident status under
section 1255(j) of this title) after the date of admission, and
(II) is convicted of a crime for which a sentence of one year
or longer may be imposed, is deportable.
8 U.S.C. § 1227(2)(A)(i).
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Conclusion
Petitioner Robert Durant’s petition for writ of habeas corpus is dismissed pursuant to 28
U.S.C. § 2243. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this
decision could not be taken in good faith.
IT IS SO ORDERED.
/s/ John R. Adams
JOHN R. ADAMS
UNITED STATES DISTRICT JUDGE
Date: November 3, 2011
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