Arega v. Warden Butler County Jail et al

Filing 7

REPORT AND RECOMMENDATIONS re #1 Petitioner's Emergency Motion for Order to Show Cause and Order the Respondents-Defendants Response to the Merits of Petitioner's Petition Under 28 U.S.C. 2243. IT IS RECOMMENDED THAT this case should be dismissed for Petitioner's failure to comply with the Court's 4/20/2021 Deficiency Order. Objections to R&R due by 6/17/2021. Signed by Magistrate Judge Stephanie K. Bowman on 6/3/2021. (km)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TIZAZU AREGA,
Petitioner,
vs.
WARDEN, BUTLER COUNTY
SHERIFF,
Respondents.

Case No. 1:21-cv-244
Barrett, J.
Bowman, M.J.
REPORT AND
RECOMMENDATION

Petitioner, an Immigration and Customs Enforcement (ICE) detainee located at the Butler
County, Ohio Jail, filed a petition for a writ of habeas corpus in this Court. (Doc. 6). The
petition, along with a motion for leave to proceed in forma pauperis, was initially filed in the
Sixth Circuit Court of Appeals on March 10, 2021. (See Doc. 5, 6). On April 21, 2021 the
documents were docketed in this action.
Meanwhile, on April 9, 2021, an “Emergency Motion for Order to Show Cause and
Order the Respondents-Defendants Response to the Merits of Petitioner’s Petition under 28
U.S.C. § 2243” was filed in this case. (Doc. 1). Because this was not the first petition filed by
petitioner challenging his state court conviction or his removal order, see Arega v. DHS, Case
No. 2:18-cv-1714 (S.D. Ohio, Mar. 18, 2019); Arega v. Evans, No. 2:18-cv-562 (S.D. Ohio June
7, 2018); Arega v. Warden, No. 2:18-cv-1486 (S.D. Ohio Nov. 16, 2018); Arega v. Warden, No.
2:16-cv-618 (S.D. Ohio June 27, 2016); Arega v. Warden, No. 2:18-cv-942 (S.D. Ohio Aug. 22,
2018); Arega v. Warden, No. 2:19-cv-2905 (S.D. Ohio June 27, 2019), the Court issued a
Deficiency Order on April 20, 2021. (Doc. 4). The Court noted that this Court does not have
jurisdiction to entertain challenges to petitioner’s removal order and, to the extent that petitioner
is challenging his state court conviction, the Court must dismiss successive petitions pursuant to

28 U.S.C. § 2244(b).1 Petitioner was ordered to show cause, in writing within thirty (30) days
of the date of this Order, why this action should not be transferred to the Sixth Circuit Court of
Appeals as a successive petition or—to the extent that petitioner challenges his removal order—
dismissed for lack of jurisdiction.2
To date, more than thirty (30) days after the April 20, 2021 Order, petitioner has failed to
respond to the Order of the Court.
District courts have the inherent power to sua sponte dismiss civil actions for want of
prosecution “to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.” Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962). Failure of a party to respond to
an order of the Court warrants invocation of the Court’s inherent power in this federal habeas
corpus proceeding. See Fed. R. Civ. P. 41(b); see also Rule 11, Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll. § 2254.
Accordingly, this case should be dismissed for petitioner’s failure to comply with the
Court’s April 20, 2021 Order. In re Alea, 286 F.3d 378, 382 (6th Cir. 2002).
IT IS SO RECOMMENDED.

s/Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge
1

Although petitioner purports to bring the petition under 28 U.S.C. § 2243, the Sixth Circuit has already found in
one of petitioner’s prior cases that such a petition challenging a state court conviction/sentence is properly construed
as being brought under § 2254. See Arega v. Warden, No. 2:18-cv-1486 (S.D. Ohio June 10, 2019) (Doc. 18) (the
Sixth Circuit denied petitioner’s motion for authorization to file a second or successive petition, finding that the
district court properly construed the petition—purportedly brought under 28 U.S.C. § 2243—as being filed under §
2254 and that the petition was second or successive).
2
Petitioner was also ordered to pay the $5.00 filing free or file a motion for leave to proceed without prepayment of
fees. Petitioner’s motion for leave to proceed in forma pauperis (Doc. 5) had not yet been filed in this action.
However, the undersigned notes that the motion docketed on April 21, 2021 is deficient, as the motion does not
include the certification portion of the application and affidavit to proceed without prepayment of fees form
(completed and signed by the institutional cashier) showing the balance of his prison account.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TIZAZU AREGA,
Petitioner,

Case No. 1:21-cv-244
Barrett, J.
Bowman, M.J.

vs.
WARDEN, BUTLER COUNTY
SHERIFF,
Respondents.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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