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Bashir v. Donahue

United States District Court, D. Arizona

October 11, 2016

Tahiru Bashir, Petitioner
v.
Michael Donahue, et al., Respondents.

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          James F. Metcalf, United States Magistrate Judge.

         I. MATTER UNDER CONSIDERATION

         Petitioner, incarcerated at the time in the Federal Detention Center, Eloy, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241on March 8, 2007 (#1) challenging his continued detention pending removal to Jordan. On May 22, 2007, Respondent filed his Suggestion of Mootness (#7). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         A. FACTUAL AND PROCEDURAL BACKGROUND

         On June 9, 2016, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). On June 20, 2016, Petitioner filed a First Amended Petition (Doc. 3), challenging his detention in the Detention Center in Eloy, Arizona, while awaiting removal to Ghana. Petitioner's Petition alleges that he was ordered removed on December 9, 2016, and has been detained more than 180 days. He alleges he has sought to facilitate his removal, but has remained in detention. (Amend. Petition Doc. 3 at 4.)

         The Court's Notice of Assignment, issued June 9, 2016 (Doc. 2) warned Petitioner that his case could be dismissed if he did not file a notice of change of address if his address changed. The Court's Service Order entered September 8, 2016 (Doc. 8) warned Petitioner that failure to file to a Notice of Change of Address immediately upon any such change “may result in the dismissal of this action.” (Id. at 2.) Neither of these documents was returned undeliverable.

         On September 19, 2016, mail from the Court to Petitioner was returned undeliverable, indicating Petitioner had been released from custody. (Doc. 15.) On September 20, 2016, Respondents filed a Notice of Deportation and Suggestion of Mootness (Doc. 12), with documents reflecting Petitioner's deportation to Ghana on or about September 13, 2016. Petitioner has not filed a notice of change of address, and the Court has no other addresses for Petitioner known to it.

         On September 22, 2016, the Court issued an Order (Doc. 16) giving Petitioner fourteen days to either: (1) file a notice of change of address; or (2) show cause why his Petition should not be dismissed for failure to prosecute in light of his failure to file a Notice of Change of Address as previously ordered. That Order further gave Petitioner fourteen days to show cause why his Petition should not be dismissed as moot in light of his apparent release from custody. Copies of that order were mailed to Petitioner at his address of record but have been returned undeliverable (Doc. 17). Petitioner has not responded.

         III. APPLICATION OF LAW TO FACTS

         A. MOOTNESS OF HABEAS PETITION

         “Article III of the Constitution limits federal ‘Judicial Power, ' that is, federal- court jurisdiction, to ‘Cases' and ‘Controversies.'” U.S. Parole Commission v. Geraghty, 445 U.S. 388, 395, 100 S.Ct. 1202, 1208 (1980). This limitation restricts the jurisdiction of the federal courts to cases where there is a possible judicial resolution. Id. A moot action is not subject to a judicial resolution.

         A moot action is one in which the parties lack a legally cognizable interest in the outcome. The test for mootness is whether the court can give a party any effective relief in the event that it decides the matter on the merits in their favor. “That is, whether the court can ‘undo' the effects of the alleged wrongdoing.” Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir. 1989).

         A habeas petition may be rendered moot following a subsequent release from custody, absent other, collateral consequences that flow from the complained of imprisonment. Lane v. Williams, 455 U.S. 624 (1982). While the existence of such collateral consequences is irrebuttably presumed in some habeas challenges to criminal convictions, see e.g., Sibron v. New York, 392 U.S. 40 (1968); Chacon v. ...


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