Montoya v. Department of Homeland Security et al

Filing 8

ORDER signed by Judge J.P. Stadtmueller on 2/22/2018: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DISMISSING CASE; and DENYING Certificate of Appealability. (cc: all counsel, via mail to Pascual Soler Montoya at Dodge County Detention Facility)(jm) Modified on 2/22/2018 (jm).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PASCUAL SOLER MONTOYA,

v.

Petitioner,

Case No. 17-CV-1706-JPS-JPS

SHERIFF DALE J. SCHMIDT,
Respondent.

ORDER

On December 7, 2017, Pascual Soler Montoya (“Montoya”) 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). Montoya alleged 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 to provide reasons why Montoya’s removal had not
yet occurred. To that end, Respondent filed a legal brief and a declaration
from deportation officer Michael Landmeier (“Landmeier”) on January 17,
2018. (Docket #5 and #6). Respondent contends that Montoya is removable
in light of a recent agreement between the United States and Cuba
regarding repatriation of certain nationals. (Docket #5 at 4). Respondent
further asserts that Montoya’s removal is reasonably foreseeable. See
Zadvydas, 533 U.S. at 699-701. Landmeier has requested travel

documentation from Cuba and has received no indication that Cuba will
not issue the necessary documents. (Docket #6 at 3).
Pursuant to the Court’s screening order, Montoya 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 Montoya has filed
nothing. The Court is therefore left with no basis on which to conclude that
Montoya’s removal is not reasonably foreseeable. In other words, without
any argument or evidence from Montoya beyond the allegations of his
petition, the Court is obliged to find that Respondent has rebutted the
presumption that Montoya’s ongoing detention is unreasonable. Zadvydas,
533 U.S. at 699–701. As a result, the Court must dismiss Montoya’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), Montoya 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 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.

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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McDaniel, 529 U.S. 473, 484 (2000). No reasonable jurists could debate
whether Montoya’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 Montoya 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
applicable rules and determine what, if any, further action is appropriate in
a case.
Accordingly,
IT IS ORDERED that Petitioner Pascual Soler Montoya’s petition for
a writ of habeas corpus (Docket #1) be and the same is hereby DENIED;

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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 February, 2018.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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