Candelaria v. Schmidt

Filing 12

ORDER signed by Judge Pamela Pepper on 5/8/2017 DENYING 1 Petition for writ of habeas corpus and DECLINING to issue a certificate of appealability and DISMISSING case. (cc: all counsel; by US Mail to petitioner)(pwm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

JESUS MARQUEZ CANDELARIA,

Case No. 16-cv-1027-PP

Petitioner,
v.
DALE J. SCHMIDT,
Respondent.

ORDER DENYING PETITION FOR
A WRIT OF HABEAS CORPUS (DKT. NO. 1).
_____________________________________________________________________________
On August 4, 2016, petitioner Jesus Marquez Candelaria filed a petition
for writ of habeas corpus under 28 U.S.C. §2241. Dkt. No. 1. The petition
indicates that, at that time, the petitioner was being held at the Dodge County
Detention Center. Id. at 1. His petition challenged his detention by Immigration
and Customs Enforcement (“ICE”) and his pretrial detention at the Milwaukee
County jail. Id. at 2. The petitioner has since been released, which moots his
petition.
I.

FACTUAL BACKGROUND
The petition indicates that on July 15, 2016, the petitioner went to the

police department, because he’d learned from his neighbors that the police had
visited his residence. Id. at 10. Once at the police station, he learned that there
was a warrant for his arrest based on allegations of sexual assault. Id. The
petitioner indicated that the arrest was the result of a false allegation made by

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his child’s mother. Id. at 11. Consequently, he claims that the police illegally
arrested and detained him for over forty-eight hours. Id. at 4, 10. In support of
this allegation, the petitioner attached an exhibit with several inmate property
receipts and a letter from the Milwaukee County Sheriff, stating that the
petitioner was incarcerated in the Milwaukee County jail from July 18, 2016 to
July 21, 2016. Dkt. No. 1-1. The petitioner eventually was turned over to
Immigration and Customs Enforcement (“ICE”). Dkt. No. 1 at 11.
The petitioner alleged that he never received a preliminary hearing or a
detention hearing, and that he was not guilty of anything. Dkt. No. 1 at 10-12.
He asked this court to release him from custody. Id.
After the petitioner filed this petition, he appeared before an immigration
judge. Dkt. No. 7-1 at 2. On March 29, 2017, the respondent filed a
“Suggestion of Mootness,” suggesting that the case was moot because the
petitioner had been released from ICE custody on January 6, 2017. Dkt. No. 11
at 1. The court agrees that the petition now is moot.
II.

STANDARD
Although the law allows authorities to detain an alien for ninety days

pending removal, 8 U.S.C. §1231(a)(1)(A), 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 . . . .” 8 U.S.C.
§1231(a)(6). This detention period is not indefinite. Zadvydas, 533 U.S. 678,
701 (2001). The Supreme Court has held that a period of detention remains
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presumptively reasonable for six months. Id.; but see 8 C.F.R. §241.14. An
alien who wishes to challenge the length of his detention may file a petition for
a writ of habeas corpus. Zadvydas, 533 U.S. at 687 (citing 28 U.S.C.
§2241(c)(3)).
Release from custody does not automatically render a habeas petition
moot. The “in custody” requirement of 28 U.S.C. §2241(c) is satisfied at the
time of the filing of the petition. Spencer v. Kemna, 523 U.S. 1, 7 (1998);
Othman v. Gonzales, No. 07-cv-13, 2010 WL 1132669, at *2 (S.D. Ill., Mar. 1,
2010) (finding 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.”) After a habeas
petitioner has been released from custody, however, the petitioner must
demonstrate that some “concrete and continuing injury” or “collateral
consequences” resulted from the detention in order for the petition to present a
continued case or controversy. Spencer, 523 U.S. at 7 (explaining that the
petitioner still must present a “case or controversy” under Article III, §2 of the
Constitution for the court to be able to grant relief to the petitioner.) “This
means that, throughout the litigation, 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.’” Id. (quoting Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990)). If the injury cannot be redressed by a
favorable judicial decision, the court must dismiss the petition as moot. A.M. v.
Butler, 360 F.3d 787, 790 (7th Cir. 2004) (citations omitted).
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III.

DISCUSSION

Here, the petitioner challenged his arrest and sought to be released from
custody. Dkt No. 1 at 12. The injury that he alleged was that he had been
detained, without a preliminary hearing and without bail, on what he alleged
were false charges. He has not alleged that he remains subject to some order or
restriction since his release (indeed, the court has received no communications
from the petitioner since he filed the petition on August 4, 2016) . 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). The petitioner is no longer being detained—lawfully or otherwise.
The court has no basis for concluding that there is a “concrete and continuing
injury” to support the petition.
The court has the discretion to provide the petitioner with the
opportunity to file a pleading detailing any injury. This petitioner, however, has
not updated his address since his release. The petitioner failed to file a reply to
the respondent’s Suggestion of Mootness. It appears that he has moved on with
his life, and has no wish to continue this litigation. If, within a reasonable
amount of time, the petitioner files a motion to reopen, the court will consider
that motion.
III. CERTIFICATE OF APPEALABILITY
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Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court
must consider whether to issue a certificate of appealability. A court may issue
a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120
S. Ct. 1595, 1603-04 (2000) (internal quotation marks omitted).
The court concludes that its decision to dismiss the petitioner’s case as
moot is neither incorrect nor debatable among jurists of reason. The petitioner
is no longer in custody and has not filed a brief demonstrating any interest in
pursuing his petition.
IV.

CONCLUSION
The court DENIES the petitioner’s writ of habeas corpus, dkt. no. 1, and

DECLINES to issue a certificate of appealability. The court ORDERS that this
case is DISMISSED.
Dated in Milwaukee, Wisconsin this 8th day of May, 2017.

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