AMENUVOR v. MAZURKIEWICL
Filing
24
MEMORANDUM AND OPINION re 4 Petition for Writ of Habeas Corpus filed by JACOB KOJO AMENUVOR dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 01/20/2012. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JACOB KOJO AMENUVOR, EN-4520,
Petitioner,
v.
WARDEN JOSEPH MAZURKIEWICL,
Respondent.
)
)
)
) 2:11-cv-0651
)
)
)
MEMORANDUM and ORDER
Mitchell, M.J.:
Jacob Kojo Amenuvor, an inmate at the State Correctional Institution at Greensburg has
presented a petition for a writ of habeas corpus pursuant to 28 U.S.C.2241. For the reasons set
forth below, the petition will be dismissed and because reasonable jurists could not conclude that
a basis for appeal exists, a certificate of appealability will be denied.
On May 12, 2011, Amenuvor executed a petition challenging his detention by the
Department of Homeland Security, Bureau of Immigration and Customs Enforcement
(“DHS/ICE”) specifically alleging that his present or future detention by DHS/ICE is without
statutory authority.
Petitioner is presently serving a life plus 13½ to 30 year sentence imposed following his
conviction of second-degree murder, robbery and carrying a firearm without a license in the
Court of Common Pleas of Monroe County, Pennsylvania. This sentence was imposed on
January 31, 2001, and has been the subject to appeals in the Pennsylvania courts and an
unsuccessful habeas corpus petition in the Middle District of Pennsylvania.1 However, it is not
this conviction which he now seeks to challenge here, but rather a detainer issued by DHS/ICE
which is lodged at his present place of incarceration.
The background to the federal order of deportation arose after the petitioner’s criminal
convictions. On November 13, 2002, an Immigration Judge determined that the petitioner was a
citizen of Ghana and ordered him removed from the United States and this determination was not
1
See: Exhibits 1-4 to the response.
1
appealed.2 Exhibit 5 to the response is the September 2, 2011 declaration of Kent J. Frederick,
Chief Counsel for the Philadelphia Office of ICE in which he represents that:
On November 22, 2010, the Board of Immigration Appeals dismissed
Amenuvor’s appeal of the immigration judge’s decision denying his motion to
reopen his immigration proceedings. Amenuvor’s motion was untimely, being
filed seven years after he had an administratively final order of removal.
Currently, Amenuvor is serving a criminal sentence after being convicted of
criminal homicide and multiple other offenses related to this crime. He is
incarcerated at S.C.I. Greensburg, PA, with an early release date of March 5,
2050.3
ICE placed a detainer with the state correctional facility that will act to transfer
his custody to ICE upon completion of his sentence.
In a Memorandum filed on October 6, 2011, we concluded that the petitioner was not “in
custody” on the federal charges and accordingly dismissed his petition. A timely appeal was
taken to the United States Court of Appeals which ruled on January 11, 2012, that we
erroneously concluded that the petitioner was not “in custody” for federal habeas purposes and
remanded the matter for consideration, inter alia, of the Government’s ripeness argument citing
to Simmonds v. INS, 326 F.3d 351, 356-61 (2d Cir. 2003) which concluded that under similar
circumstances, the petition did not “satisfy the doctrine of prudential ripeness.”4
In Simmonds, Judge Calabresi wrote:
Anthony Simmonds, a prisoner serving an indeterminate life sentence in the State
of New York, filed a habeas corpus … seeking to overturn an order that he be
deported for his drug and weapon possession convictions… Although we find that
Simmonds is in INS custody within the meaning of 28 U.S.C. §2241,
considerations of prudence lead us to order that his petition be dismissed as not
ripe.
326 F.3d at 353.
The Simmonds court rejected the position of the district court which, like here, concluded
that the petitioner was not “in custody” and determined that he did meet the custody requirement.
The court, then went on to consider the ripeness doctrine writing:
2
See: Page 4 of the response.
We believe this possible release date is incorrect since under Pennsylvania law a second degree murder conviction
compels a mandatory life sentence. 18 Pa. C.S.A. § 1102(b).
4
United States Court of Appeals for the Third Circuit No. 11-4086.
3
2
“Ripeness” is a term that has been used to describe two overlapping threshold
criteria for the exercise of a federal court’s jurisdiction… Both are concerned
with whether a case has been brought prematurely, but they protect against
prematureness in different ways and for different reasons. The first of these
ripeness requirements has as its source the Case or Controversy Clause of Article
III of the Constitution, and hence goes, in a fundamental way, to the existence of
jurisdiction. The second is a more flexible doctrine of judicial prudence, and
constitutes an important exception to the usual rule that where jurisdiction exists
a federal court must exercise it…
These two forms of ripeness are not co-extensive in purpose. Constitutional
ripeness is a doctrine that, like standing, is a limitation on the power of the
judiciary… But when a court declares that a case is not prudentially ripe, it means
that the case will be better decided later and that the parties will not have
constitutional rights undermined by the delay … Of course, in deciding whether
“better” means later the court must consider the likelihood that some of the parties
will be made worse off on account of the delay. But that, and its degree, is just
one – albeit important – factor the court must consider. Prudential ripeness is,
then, a tool that courts may use to enhance the accuracy of their decisions and to
avoid becoming embroiled in adjudications that may later turn out to be
unnecessary or may require premature examination of, especially, constitutional
issues that time may make easier or less controversial… (citing cases).
326 F.3d at 356-357.
The Simmonds court then recognized that although a possibility of state parole existed
the habeas corpus issue was better addressed at a time closer to the petitioner’s parole and
accordingly, the petition was dismissed by the Court of Appeals as premature. Unlike Simmonds,
the petitioner here is serving a life sentence for second degree murder which under Pennsylvania
law does not allow for the possibility of parole5 to be followed by a consecutive 13 ½ to 30 year
sentence. Thus, the reality is that except in some presently unimaginable event there is no
reasonable likelihood that he will ever come into federal custody, and for this reason his petition
here is better addressed at some time, if ever, that it appears that federal custody is likely.
Accordingly, the petition of Jacob Kojo Amenuvor for a writ of habeas corpus will be
dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a
certificate of appealability will be denied.
An appropriate Order will be entered.
5
18 Pa.C.S.A. § 1102(b).
3
ORDER
AND NOW, this 20th day of January, 2012, for the reasons set forth in the foregoing
Memorandum, the petition of Jacob Kojo Amenuvor for a writ of habeas corpus is DISMISSED
and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of
appealability will is DENIED.
s/ Robert C. Mitchell
United States Magistrate Judge
4
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