Murillo v. Department of Homeland Security et al
ORDER signed by Judge Pamela Pepper on 12/2/2015 DENYING WITHOUT PREJUDICE 1 Habeas Corpus Petition; DENYING AS MOOT 2 Motion for Leave to Proceed in forma pauperis; DENYING AS MOOT 3 Motion to Appoint Counsel ; and DENYING AS MOOT 4 Motion to Place Burden on Government. (cc: all counsel; by US Mail to petitioner at last-known address) (pwm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CESAR RICO MURILLO,
Case No. 15-cv-508-pp
DEPARTMENT OF HOMELAND SECURITY,
IMMIGRATIONS CUSTOMS ENFORCEMENT,
IMMIGRATION COURTS, and
ORDER DENYING WITHOUT PREJUDICE HABEAS CORPUS PETITION
(DKT. NO. 1) AND DENYING AS MOOT THE PETITIONER’S APPLICATION
FOR LEAVE TO PROCEED IN FORMA PAUPERIS (DKT. NO. 2), MOTION
FOR APPOINTMENT OF COUNSEL (DKT. NO. 3), MOTION TO PLACE
BURDEN ON GOVERNMENT (DKT. NO. 4)
Cesar Rico Murillo, who at the time he filed this case was in custody at
the Kenosha County Detention Center, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. §2241. Dkt. No. 1. Representing himself, the
petitioner asked the court to order his immediate release from post-removal
custody, to enjoin the respondents from further unlawful detention, and for an
award of attorney’s fees under 28 U.S.C. §2412 and the Equal Right to Justice
Act, 5 U.S.C. §504. Id.1
The court notes that the petitioner captions his pleadings, “United States
Department of Justice Executive Office for Immigration Review United States
District Court Eastern District of Wisconsin.” This caption includes two
separate, independent agencies. The Executive Office for Immigration Review is
In accordance with Rule 1(b) of the Rules Governing Section 2254 Cases
and Civil L. R. 9(a)(2), the court applies the Rules Governing Section 2254
cases to petitions for a writ of habeas corpus under 28 U.S.C. §2241. Chagala
v. Beth, No. 15-cv-531, 2015 WL 2345614, at *1 (E.D. Wis. May 15, 2015).
Those rules require the court to review, or “screen” the petition. Rule 4 of the
Rules Governing Section 2254 Cases states:
If it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition
and direct the clerk to notify the petitioner. If the
petition is not dismissed, the judge must order the
respondent to file an answer, motion, or other
response within a fixed time, or to take other action
the judge may order.
The petitioner filed his petition on April 29, 2015. He alleges that he is a
native and citizen of Mexico, that he has been in custody of U.S. Immigration
and Customs Enforcement (“ICE”) since February 3, 2014, and that he has
been detained at the Kenosha County Detention Center in Kenosha, Wisconsin.
Dkt. No. 1 at 2. The petitioner states that on February 3, 2014, he was ordered
to be removed to Mexico, and that the removal order became final on March 26,
2014. Roughly thirteen months passed between the date the petitioner claims
his removal order became final and the date of the petition. He also alleges that
part of the United States Department of Justice. That Department is part of the
executive branch of the United States government. The United States District
Court is a federal trial court, and is part of the judicial branch of the
government. If the petitioner wishes to ask the Executive Office for Immigration
Review to do something for him, he must ask that office directly—this court
has the authority only to rule on motions addressed to the District Court for
the Eastern District of Wisconsin.
he has exhausted his administrative remedies. See Richmond v. Scibana, 387
F.3d 602, 604 (7th Cir. 2004) (A §2241 petitioner must exhaust his
administrative remedies before filing his petition.).
The petitioner contends that the length of his pre-removal detention “is
unlawful and contravenes 8 U.S.C. §1231(a)(6) as interpreted by the Supreme
Court in” Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491 (2001), and that it
violated his constitutional substantive and procedural due process rights. Id.
He asks the court to issue a writ of habeas corpus directing the respondents to
immediately release him from custody. Id. at 3. Although the petitioner alleges
that ICE detained him in the Kenosha County Detention Center, the petitioner
did not name the warden of that facility (Kenosha County Sheriff David G.
Beth) as a respondent. Instead, he named the Department of Homeland
Security, ICE, the “Immigration Courts,” and the Attorney General.
After the petitioner filed his case here in federal court, the clerk’s office
attempted to mail to him, at the Kenosha County Detention Center, two letters
and an order. The clerk’s office mailed the first letter on April 30, 2015. Dkt.
No. 5. On May 11, 2015, that mail was returned to the court as undeliverable;
the Detention Center informed the clerk’s office that the petitioner had been
“released to INS” on May 1, 2015. Dkt. Entry, May 11, 2015. On May 12, 2015,
a member of the clerk’s office made a notation on the court docket, indicating,
“Per INS, petitioner’s new address is . . . Peoria, Illinois.” Dkt. Entry, May 12,
2015. On May 14, 2005, the clerk’s office sent a letter to the petitioner at that
new address, Dkt. No. 7; that letter was returned by the postal service
“undeliverable,” for “insufficient address.” Dkt. No. 8. Since the date he filed
the petition, the petitioner has not filed any change of address information with
The court is not in a position to consider the merits of the petition. First,
the petitioner did not name the warden of the Kenosha County Detention
Center as a respondent, as required by law. Second, it appears that the
petitioner was released from the detention center two days after he filed his
petition, and the petitioner has not provided the court with any information
regarding whether he remains in custody somewhere else.
A. The Petition Names the Wrong Respondent.
In Kholyavskiy v. Achim, 443 F.3d 946 (7th Cir. 2006), the Seventh
Circuit held that the “immediate custodian rule” applies to habeas petitions in
which the petitioner “does not challenge the validity of his removal order, but
instead attacks the constitutionality of his confinement while he was awaiting
removal.” Id. at 952. Under this rule, a habeas petitioner must name the
warden of the facility where he is physically incarcerated when the petition is
filed, i.e., the “person who has the immediate custody of the person detained,
with the power to produce the body of such party before the court or judge.”
Id. (citing Rumsfeld v. Padilla, 542 U.S. 426 (2004)).
Kholyavskiy also involved a petitioner (Kholyavskiy) who was in custody
at the Kenosha County Detention Center. Like the petitioner here, Kholyavskiy
did not name the warden (the sheriff) as a respondent. Id. at 947. Instead, he
named the Chicago field director for ICE (defendant Achim), along with the
Secretary of the Department of Homeland Security and the Attorney General.
Id. The district court applied the immediate custodian rule, and dismissed the
petition because the petitioner did not name the warden of the Kenosha County
Detention Center as a respondent. Id. at 947. On appeal, Kholyavskiy argued
that ICE Detention Operations Manual provided that only an ICE official, such
as Achim, “not the warden, has the power to produce the body of the detainee
before a habeas court,” and he maintained that “Achim is the functional
equivalent of a warden for purposes of his habeas challenge.” Id. at 953.
Therefore, he contended that he was in actual custody of ICE, not the Kenosha
County Detention Center. Id. at 953. The Seventh Circuit rejected those
arguments and affirmed. Id. at 954.
Kholyavskiy requires that, for habeas purposes, “the immediate
custodian, not a supervisory official who exercises legal control, is the proper
respondent.” Id. at 953 (quoting Padilla, 542 U.S. at 439). Consequently, the
petitioner in this case should have named as the respondent the Kenosha
County Sheriff, because he was the individual who had immediate authority to
produce the petitioner. Id. Because the petitioner did not name the sheriff, the
petition is subject to dismissal on that basis alone. Id. See also Chagala v.
Beth, No. 15-C-531, 2015 WL 2345614, at *1 n.1 (E.D. Wis., May 13, 2015)
(finding “the only proper [r]espondent is . . . the Kenosha County Sheriff who
oversees the Kenosha County Detention Center, because he has day-to-day
control over” the petitioner, and dismissing the Department of Homeland
Security, ICE, the “Immigration Courts,” and the Attorney General).
If the petitioner is in custody somewhere, this would be a problem that
the petitioner can remedy, by filing an amended petition naming as the
respondent the entity or person who has custody over him. Padilla, 542 U.S. at
438 (“A habeas petitioner who challenges a form of ‘custody’ other than present
physical confinement may name as respondent the entity or person who
exercises legal control with respect to the challenged ‘custody.’”). That raises
the question, however, of whether the petitioner remains in custody anywhere
under ICE authority.
If The Petitioner Is No Longer In Custody, The Petition May Be
Under §§1231(a)(3), an alien can be detailed for ninety days pending
removal. Some aliens, including those who have committed certain crimes or
“have been determined by the Attorney General to be a risk to the community
or unlikely to comply with the order of removal, may be detained beyond the
removal period,” and if they are released, may be subject to other terms of
supervision. See 8 U.S.C. §1231(a)(6). In Zadvydas, the Supreme Court
concluded that six months was a presumptively reasonable time to detain an
alien pending removal under §1231(a)(6). Zadvydas, 533 U.S. at 701.
Habeas corpus is the appropriate vehicle for obtaining release from
immigration custody where there is inordinate delay pending removal. See
Zadvydas, 533 U.S. at 687 (under 28 U.S.C. § 2241(c)(3), federal courts have
jurisdiction to consider post-removal period detention cases). Under 28 U.S.C.
§ 2241(c), a writ of habeas corpus “shall not extend to a prisoner” unless he is
“in custody.” The “in custody” requirement is satisfied at the time of the filing
of the petition. Spencer v. Kemna, 523 U.S. 1, 7 (1998) (citing Carafas v. La
Vallee, 391 U.S. 234, 238 (1968) and Maleng v. Cook, 490 U.S. 488, 490-491
(1989)). “A post-removal detainee who is released while his petition for writ of
habeas corpus is pending still meets the ‘in custody’ requirement; his release
does not necessarily render his petition moot.” Othman v. Gonzales, No. 07-cv13, 2010 WL 1132669, at *2 (S.D. Ill., Mar. 1, 2010).
The petition still must present a “case or controversy” under Article III,
§2 of the Constitution, however, for the court to be able to grant relief to the
petitioner. That means the petitioner “must have suffered, or be threatened
with, an actual injury traceable to the [respondent] and likely to be redressed
by a favorable judicial decision.” Spencer, 523 U.S. at 7 (quoting Lewis v. Cont’l
Bank Corp., 494 U.S. 472, 477-78 (1990)). The Seventh Circuit has directed
lower courts to “dismiss a case as moot when it cannot give the petitioner any
effective relief.” A.M. v. Butler, 360 F.3d 787, 790 (7th Cir. 2004). After a
habeas petitioner has been released from custody, the petitioner must
demonstrate that some “concrete and continuing injury” or “collateral
consequences” must have resulted from the detention in order for the suit to
present a continued case or controversy. Spencer, 523 U.S. at 7 (citing Carafas
v. LaVallee, 391 U.S. 234, 237-38 (1968)).
In this case, the petitioner challenged his continuing detention and
sought to be released from custody pending removal, but he did not challenge
the validity of the removal order itself. Indeed, he stated that he “has
cooperated fully with all efforts by ICE to remove him from the United
States . . . .” Dkt. No. 1 at 2. It is not clear from his petition, however, whether
he believes that he sustained any injury (other than the fact of being detained)
from the thirteen months he spent in confinement at the detention center, or
from some order that may restrict his freedom even after release. See Alvarez v.
Holder, 454 F. App’x 769, 772-73 (11th Cir. 2011) (concluding that a habeas
petition was not mooted by the petitioner’s release from ICE custody because
he remained subject to a supervised release order, which the petitioner
challenged). Without further information from the petitioner, the court cannot
determine whether the petition is moot.
The Petitioner Has Not Provided the Court With Any Information
Regarding His Current Status or Whereabouts.
According to the Kenosha County Detention Center, the petitioner was
“released to INS” sometime between April 29 and May 1, 2015. The clerk’s
office also was told (apparently by someone at ICE) that the petitioner had a
new address in Peoria, Illinois. But the petitioner himself has not filed anything
with the court since the day he filed his petition. The court does not know
whether he went from custody in the detention center to some other custody,
whether he was removed from the country, or whether he was released
altogether. It is the petitioner’s responsibility to keep the court informed
regarding whether he remains in custody, and to let the court know where he is
and how to reach him. If the petitioner is not concerned enough with the merits
of his case to provide the court with new address information, or to tell the
court whether he remains in custody, the court cannot grant him relief.
For all of these reasons, the court will deny the petition. If the petitioner
is, in fact, in custody somewhere at the direction of ICE, he may file another
The Dismissal of the Petition Moots the Petitioner’s Other Motions.
The petitioner filed a motion asking the court to allow him to proceed
with his habeas case without having to pay the filing fee. Dkt. No. 2. He also
filed a motion asking the court to appoint a lawyer to represent him, Dkt. No.
3, and a motion asking the court to require ICE to show why he should not be
released, Dkt. No. 4. Because the court is dismissing the habeas petition, these
motions are moot.
For the reasons explained above, the court DISMISSES the April 29,
2015 habeas corpus petition without prejudice. Dkt. No. 1. The court DENIES
the plaintiff’s application to proceed in forma pauperis, Dkt. No. 2, motion for
appointment of counsel, Dkt. No. 3, and motion to require ICE to show why he
should not be released, Dkt. No. 4, as moot.
Dated in Milwaukee, Wisconsin this 2nd day of December, 2015.
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