Betharte v. Schmidt

Filing 12

ORDER signed by Judge J.P. Stadtmueller on 3/20/2018: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DISMISSING CASE; and DENYING Certificate of Appealability. See Order. (cc: all counsel, via mail to Jorge Castillo Betharte at ICE Processing Center)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JORGE CASTILLO BETHARTE,
Petitioner,

v.

Case No. 17-CV-1590-JPS

DALE SCHMIDT,
Respondent.

ORDER

On November 14, 2017, Jorge Castillo Betharte (“Betharte”) 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 #5). Put simply, Betharte claims
that his removal to Cuba has been interminably delayed, in violation of
Zadvydas v. Davis, 533 U.S. 678, 682 (2001), and that his removal is in fact
impossible, as there is no repatriation agreement between the United States
and Cuba. Id. at 4.
The Court permitted this action to proceed past screening and
ordered Respondent, the Dodge County Sherriff, to provide reasons why
Betharte’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 20, 2017. (Docket #9, #10). Respondent
contends that Betharte’s petition is premature because the length of his
detention has not yet exceeded the presumptively reasonable period and,
in any event, his removal is reasonably foreseeable. See Zadvydas, 533 U.S.
at 699-701. Landmeier secured travel documentation from Cuba allowing

Betharte to be removed imminently. (Docket #10 at 5). Betharte notified the
Court on January 2, 2018, that his address had changed to a U.S.
Immigration and Customs Enforcement detention center in Miami, Florida.
(Docket #11). The Court has not heard from him since then.
On March 19, 2018, the Court learned from counsel for Respondent
that Betharte has been removed from the country. Betharte’s petition might
be dismissed, then, on the basis that it is moot. See Lewis v. Cont'l Bank Corp.,
494 U.S. 472, 477 (1990) (“Under Article III of the Constitution, federal
courts may adjudicate only actual, ongoing cases or controversies.”). But
the Court need not reach mootness, because Betharte’s petition must be
denied for an independent reason: Betharte did not comply with the Court’s
order that he file a brief in support of his petition within thirty days of
Respondent’s responsive filing. See (Docket #5 at 6-7). The Court is therefore
left with no basis on which to conclude that Betharte’s removal is not
reasonably foreseeable (indeed, it appears to have already happened).
Zadvydas, 533 U.S. at 699–701. As a result, the Court must dismiss Betharte’s
petition.
Under Rule 11(a) of the Rules Governing Section 2254 Cases,1 “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), Betharte 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
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.
1

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the issues presented were adequate to deserve 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 Betharte’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 Betharte 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 closely review all
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applicable rules and determine what, if any, further action is appropriate in
a case.
Accordingly,
IT IS ORDERED that Petitioner Jorge Castillo Betharte’s 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 20th day of March, 2018.
BY THE COURT:

___________________________________________

J. P. Stadtmueller
U.S. District Judge

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