Pierre v. Sabol

Filing 23

MEMORANDUM AND ORDER - AND NOW, this 27th day of Sept., 2011, upon con. of petnr.'s mtn. 13 under FRCP 60(b)(6) for relief from jgm., it is ordered that the mtn. is denied. 12 Signed by Honorable William W. Caldwell on 9/27/11. (See memo for complete details.)(am, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVE PIERRE,
Petitioner
v.
MARY SABOL,
Respondent

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: CIVIL NO. 1:10-CV-2634
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MEMORANDUM
This is a 28 U.S.C. § 2241 petition filed pro se by Dave Pierre, an ICE
detainee, challenging his continued detention under 8 U.S.C. § 1226(c). We are
considering his motion under Fed. R. Civ. P. 60(b)(6) for relief from our order of June 20,
2011. In that order, we required that Petitioner be granted a Joseph hearing before an
immigration judge but denied any other relief sought.1 Our order was based on the
magistrate judge’s report and recommendation of May 20, 2011, 2011 WL 2470461
(M.D. Pa.), to which no objections had been filed by either party.
The Department of Homeland Security complied with the order and held a
Joseph hearing on June 24, 2011. The immigration judge denied relief on the basis that
Petitioner was subject to a final order of removal and hence he was no longer being held
in custody under section 1226(c). Consequently, he had no jurisdiction to hold a Joseph

1

“[A] Joseph hearing gives an alien the opportunity to avoid mandatory detention
[under section 1226(c)] by establishing that he is not an alien, was not convicted of a crime
requiring mandatory detention, or is otherwise not subject to mandatory detention” under that
section. Diop v. ICE/Homeland Security, F.3d , 2011 WL 3849739, at *8 (3d Cir.
2011)(quoted case omitted).

hearing. The Rule 60(b)(6) motion argues this ruling violated our order. The motion also
reiterates Petitioner’s contention that his continued detention violates due process.2
We see no reason to grant relief from the judgment under Rule 60(b)(6).3
That subsection of Rule 60(b) requires extraordinary circumstances. Walsh v. Krantz,
423 F. App’x 177, 180 (3d Cir. 2011)(per curiam)(nonprecedential)(citing MartinezMcBean v. Gov’t of the Virgin Islands, 562 F.2d 908, 911 (3d Cir. 1977)). In regard to the
Joseph hearing, our order did not require that the immigration judge grant any relief, only
that he hold a hearing on the merits. There is thus no basis for granting relief from this
aspect of the judgment.
In regard to Petitioner’s continued detention, the Rule 60(b) motion relies
on events that have occurred since our June 20, 2011, order: (1) on August 30, 2011, the
Board of Immigration Appeals reversed the immigration judge’s decision of May 31,
2

The petition and Rule 60(b) motion were filed while Petitioner was being detained
at the York County Prison in York, Pennsylvania. Petitioner is now being detained at the
Etowah County Detention Center in Gadsden, Alabama.
3

Federal Rule Civil Procedure 60(b) allows a party relief from a final judgment or
order based on:
(1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence that with reasonable diligence, could
not have been discovered in time to move for a new trial under
Rule 59(b); (3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or other misconduct of an adverse
party; (4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated, or applying it
prospectively is no longer equitable; or (6) any other reason that
justifies relief. Fed. R. Civ. P. 60(b).
Subsection (6), the section Petitioner invokes here, is the catchall provision.

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2011, denying withholding, and remanded for further proceedings, including any current
evidence bearing on Petitioner’s request for withholding of removal; (2) Petitioner has
now been in detention for about ten months (actually a little over a year), and the need
for further proceeding based on the immigration judge’s error will mean further detention.
These postjudgment events have no relevance to the order of June 20,
2011. Walsh, 423 F. App’x at 180. The magistrate judge’s analysis, upon which the
order is based and to which Petitioner did not object, that Petitioner’s detention does not
violate due process remains valid, see 2011 WL 2470461, at *7-8. We note that the
analysis is in basic accord with the Third Circuit’ recent approach to detention under
section 1226(c) in Diop v. ICE/Homeland Security,

F.3d

, 2011 WL 3849739, at *7, 9

(3d Cir. 2011).
We advise Petitioner that at some point his detention might violate due
process. We have only ruled on the facts presented in this case. If he continues to be
detained without being released or removed to Antigua, he is free to file another 2241
petition challenging his detention.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: September 27, 2011

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVE PIERRE,
Petitioner
v.
MARY SABOL,
Respondent

:
:
:
: CIVIL NO. 1:10-CV-2634
:
:
:

ORDER
AND NOW, this 27th day of September, 2011, upon consideration of
Petitioner’s motion (Doc. 13) under Fed. R. Civ. P. 60(b)(6) for relief from judgment, it is
ordered that the motion is denied.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge