Onyango v. Sessions et al

Filing 10

ORDER signed by Judge J.P. Stadtmueller on 1/22/2018: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DISMISSING CASE; and DENYING certificate of appealability. (cc: all counsel, via mail to Allan Wasonga Onyango at Dodge County Detention Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ALLAN WASONGA ONYANGO,
Petitioner,

v.

Case No. 17-CV-1517-JPS

DALE SCHMIDT,
Respondent.

ORDER

On November 3, 2017, Allan Wasonga Onyango (“Onyango”) filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241,
challenging his detention in connection with removal proceedings.
(Docket #1). The Court documented the factual and procedural history of
this proceeding in its screening order. (Docket #4). Put simply, Onyango
claims that his removal to Kenya has been interminably delayed, in
violation of Zadvydas v. Davis, 533 U.S. 678, 682 (2001).
The Court permitted this action to proceed past screening and
ordered Respondent, the Dodge County Sherriff, to provide reasons why
Onyango’s removal had not yet occurred. To that end, Respondent filed a
legal brief and a declaration from deportation officer Michael Landmeier
(“Landmeier”) on December 14, 2017. (Docket #7, #8). Respondent
contended that Onyango’s removal was “imminent” because needed
travel documents had been obtained from the government of Kenya and
Onyango’s deportation had been scheduled. (Docket #7 at 5).
Pursuant to the Court’s screening order, Onyango was to file a brief
in support of his petition within thirty days of Respondent’s filing. See
(Docket #4 at 6–7). That deadline has passed, and Onyango has filed

nothing. Perhaps he has already been removed? Landmeier did not say
the date for which Onyango’s deportation had been scheduled. Whether
because his removal has been effected or because he simply failed to
timely file his brief, the Court is left with no basis on which to conclude
that Onyango’s removal is not reasonably foreseeable. In other words,
without any argument or evidence from Onyango beyond the allegations
of his petition, the Court is obliged to find that Respondent has rebutted
the presumption that Onyango’s ongoing detention is unreasonable.
Zadvydas, 533 U.S. at 699–701. As a result, the Court must dismiss
Onyango’s petition.1
Under Rule 11(a) of the Rules Governing Section 2254 Cases,2 “the
district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Onyango must make a
“substantial showing of the denial of a constitutional right” by
establishing that “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

There is a small discrepancy between Respondent’s submission and the
Court’s screening order. The Court directed Respondent to either answer the
petition or file a motion to dismiss, (Docket #4 at 6–7), and his brief in opposition
to the petition is neither of those things. While respondents in future cases would
do well to abide by the Court’s prerogatives regarding how to proceed in habeas
cases, given the simplicity of the issues presented in Onyango’s case, a formal
answer or motion would have been unnecessary. In any event, it is not at all
apparent that Onyango failed to timely file a brief based on Respondent’s
procedural foible.
1

Rule 1(b) of those Rules and Civil Local Rule 9(a)(2) give this Court the
authority to apply the rules to other habeas corpus cases, including those arising
under Section 2241.
2

Page 2 of 4

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal citations omitted). Further, when the Court has denied
relief on procedural grounds, the petitioner must show that jurists of
reason would find it debatable both that the “petition states a valid claim
of the denial of a constitutional right” and that “the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
No reasonable jurists could debate whether Onyango’s claims, which he
failed to support with evidence or argument, have merit. As a
consequence, the Court is compelled to deny him a certificate of
appealability.
Finally, the Court closes with some information about the actions
that Onyango may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within thirty (30)
days of the entry of judgment. See Fed. R. App. P. 3, 4. This Court may
extend this deadline if a party timely requests an extension and shows
good cause or excusable neglect for not being able to meet the 30-day
deadline. See id. 4(a)(5)(A). Moreover, under certain circumstances, a party
may ask this Court to alter or amend its judgment under Federal Rule of
Civil Procedure 59(e) or ask for relief from judgment under Federal Rule
of Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of judgment. The
Court cannot extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion
under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. Id. A party is expected to
Page 3 of 4

closely review all applicable rules and determine what, if any, further
action is appropriate in a case.
Accordingly,
IT IS ORDERED that the instant petition for a writ of habeas
corpus (Docket #1) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED; and
IT IS FURTHER ORDERED that a certificate of appealability be
and the same is hereby DENIED.
The Clerk of Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 22nd day of January, 2018.
BY THE COURT:

___________________________________________

J. P. Stadtmueller
U.S. District Judge

Page 4 of 4