Candelaria v. Schmidt

Filing 4

ORDER signed by Judge Pamela Pepper on 10/8/2016 Screening the 1 Petition for Writ of Habeas Corpus filed by Jesus Marquez Candelaria. (cc: all counsel and copy sent by U.S. Mail to the Dodge County Sheriff, U.S. Attorney for the Eastern District of Wisconsin, U.S Attorney General in Washington DC, U.S. Immigration and Customs Enforcement, and the U.S. Department of Homeland Security on 10/11/2016.)(kgw)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JESUS MARQUEZ CANDELARIA,

Case No. 16-cv-1027-PP

Petitioner,
v.
DALE J. SCHMIDT,
Respondent.

ORDER SCREENING THE PETITION FOR WRIT OF HABEAS CORPUS
(DKT. NO 1)
_____________________________________________________________________________
On August 4, 2016, petitioner Jesus Marquez Candelaria, filed a petition
for writ of habeas corpus pursuant to 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 challenges his detention by Immigration
and Customs Enforcement (“ICE”) and his pretrial detention at the Milwaukee
County jail. Id. at 2.
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
his child’s mother. Id. at 11. Consequently, the petitioner claims that the police
illegally arrested and held him for over forty-eight hours. Id. at 4, 10. In
support of this allegation, the petitioner attached an exhibit with several
1

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. At that point, the petitioner was
turned over Immigration and Customs Enforcement (“ICE”). Dkt. No. 1 at 11.
The petitioner alleges that he never received a preliminary hearing or a
detention hearing, and that he is not guilty of anything. Dkt. No. 1 at 10-12.
Thus, he asks to be released from custody.
In accordance with Rule 1(b) of the Rules Governing 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 United States Court of Appeals for the Seventh Circuit has
specifically addressed the petitioner’s situation. In Arias v. Rogers, 676 F.2d
1139 (7th Cir. 1982), Judge Posner held that “once deportation proceedings
have begun, the legality of the alien’s detention can no longer be tested by way
of a habeas corpus proceeding.” He then added the qualification that this rule
applies only if the proceedings are begun with reasonable promptness. Id. at
2

1143-44. The court cannot determine from review of the petition, whether ICE
has commenced deportation proceedings. The petitioner states that he did not
receive a hearing on his arrest. Thus, the court construes his petition as an
allegation that ICE did not begin his deportation proceeding with reasonable
promptness.
At this point, based on the spare facts in the petition, the court cannot
conclude that the petitioner is not entitled to relief from the district court.
Accordingly, the court will require the respondent to answer or otherwise
respond to the complaint.
Accordingly, the court ORDERS the respondent to answer or otherwise
respond to the petition within sixty (60) days of the date of this order,
showing cause why a writ should not issue with respect to the petition for
habeas corpus. If the petitioner chooses to file a reply, the court ORDERS the
petitioner must file that reply in support of his petition within forty-five (45)
days of the filing of the respondent’s answer.
The court will send a copy of the petition and this order to the Dodge
County Sheriff. Pursuant to Fed. R. Civ. P. 4(i), the court also will send a copy
of the petition and this order to the United States Attorney for this District, and
via registered or certified mail to the United States Attorney General in

3

Washington, D.C., the United States Immigration and Customs Enforcement,
and the United States Department of Homeland Security.
Dated in Milwaukee, Wisconsin this 8th day of October, 2016.

4