Caceres Juarez v. Napolitano et al

Filing 14

ORDER signed by Judge Rudolph T Randa on 10/11/2011 granting 13 Motion to Dismiss. (cc: all counsel) (Koll, J)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MIQUEL CACERES JUAREZ,
A094-06-4338
Petitioner,
v.

Case No. 11-C-713

DAVID G. BETH,
Sheriff of Kenosha County, Wisconsin;
Respondent.

DECISION AND ORDER

On July 27, 2011, the Petitioner, Miguel Caceres Juarez (“Juarez”) filed an
application seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241,1 challenging his
continued detention by the United States which asserted it could deport Juarez, to any
alternative country, other than his native country of Honduras, that will accept him despite the
fact that it did not designate or raise any alternative country or counties during Juarez’s
removal proceedings. Juarez alleged that he was granted withholding relief under the
Immigration and Nationality Act (“INA”) § 241(b)(3) and is prevented from being removed
to his native county of Honduras; however, the Government continues to unlawfully detain
him. On August 17, 2011, following preliminary review pursuant to Rule Four of the Rules

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Juarez designated his initial filing as a petition for a writ of habeas corpus. However, §§ 2241 through 2243
refer to an application for a writ of habeas corpus, and this Court will do the same.

Governing Section 2254 Cases in the United States District Courts, this Court ordered the
Respondent, David G. Beth (“Beth”), to file an answer to the application by September 19,
2011.
On September 15, 2011, Beth filed a suggestion of mootness as to the
application due to Juarez’s release from custody. Thereafter, Juarez filed an unopposed
motion to dismiss without prejudice, citing no legal authority for his motion.
As noted in this Court’s August 2011 Decision and Order, no rules have been
promulgated specifically for § 2241 applications. However, Rule 1 of the Rules Governing
Section 2254 Cases in the United States District Courts states that the district court may apply
any or all of the § 2254 rules to a habeas corpus petition not specifically covered by those
rules. Civil Local Rule 9(a)(2) of this District also specifies that the Court may apply any of
the Rules Governing Section 2254 Cases in the United States District Courts to an application
for release from custody pursuant to 28 U.S.C. § 2241. In addition, Rule 12 of the Rules
Governing Section 2254 Cases in the United States District Courts provides that the Federal
Rules of Civil Procedure may be applied to a proceeding under such rules to the extent that
they are not inconsistent with any statutory provisions or the § 2254 rules.
Garrett v. United States, 178 F.3d 940, 942 (7th Cir. 1999) assumed, without
deciding, that Rule 41(a)(1) of the Federal Rules of Civil Procedure applies in habeas corpus
actions. Following the lead of Garrett, this Court will also apply Rule 41to Juarez’s motion
to dismiss.

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Rule 41(a)(1)(A) states in pertinent part “the plaintiff may dismiss an action
without a court order by filing: (i) a notice of dismissal before the opposing party serves either
an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all
parties who have appeared.” Rule 41(a)(1)(B) further provides that “[u]nless the notice or
stipulation states otherwise, the dismissal is without prejudice.”
In this case, the United States has not filed an answer or a motion for summary
judgment. Consequently, a notice of dismissal would have been sufficient to dismiss the
action. Regardless, Juarez has filed an unopposed motion to dismiss the action without
prejudice. Under the circumstances, the Court will grant his motion and dismiss the action
without prejudice.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Juarez’s motion to dismiss this action without prejudice is GRANTED; and
The Clerk of Court is DIRECTED to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 12th day of October, 2011.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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