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Akinola v. Kline

United States District Court, D. Arizona

June 22, 2018

Kole Akinola, Petitioner,
v.
Kris Kline, et al., Respondents.

          ORDER

          HONORABLE DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Report and Recommendation (“R&R”) issued by United States Magistrate John Z. Boyle (Doc. 19) to Respondents' Motion to Dismiss and/or Transfer Venue to the District of New Jersey. (Doc. 13). Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on August 31, 2017 (Doc. 1). Respondents filed their Motion to Dismiss on October 3, 2017. The R&R recommends granting the Motion to Dismiss the Petition. Petitioner has filed an Objection to the Report and Recommendation (Doc. 20). Respondents have filed a response to Petitioner's Objection (Doc. 23). Petitioner also filed a supplemental objection to the R&R (Doc. 21) and a “Traverse” to the Respondents' Response (Doc. 24). The Court will strike both of those filings as being non-compliant with the Local Rules.[1]

         Petitioner, who is awaiting removal to Nigeria, asserts his detention period has been longer than what is reasonable and therefore that he is entitled a bond hearing pursuant to 8 U.S.C. § 1226(a). (Doc. 1). An order was issued for Petitioner to be removed from the country. Petitioner filed a Petition for Review (“PFR”) of that decision in the Ninth Circuit Court of Appeals, which automatically stayed Petitioner's removal. The present Petition followed.

         Respondents' Motion to Dismiss argues that the Petition is duplicative of a Petition filed by Petitioner in the District of New Jersey. (Doc. 13). Moreover, subsequent to the filing of the Motion to Dismiss, the Ninth Circuit denied the PFR and vacated the stay of Petitioner's removal. (Doc. 17-1 at 15). Based on this ruling, the R&R found that the Petitioner's arguments are moot. Additionally, the R&R found that all of the claims in the Petition are duplicative to the New Jersey Petition.[2] Accordingly, the Magistrate Judge recommends the Motion to Dismiss be granted. (Doc. 19 at 6). For reasons stated below, the Court will adopt the recommendation of the Magistrate Judge and grant Respondents' Motion to Dismiss.

         I. Background

         Petitioner, a citizen of Nigeria, was convicted in state court in New Jersey on April 13, 2000, and was sentenced to a term of ten years imprisonment. (Doc. 13-1 at 1). On July 12, 2010, an immigration judge ordered Petitioner to be removed from the United States. (Id.) On April 27, 2011, Petitioner was arrested on federal criminal charges and was detained pending trial. (Id.) This detention forms the basis for the Petition. The R&R summarizes the remainder of the procedural background of the case, including his cases from the immigration court, the District of New Jersey, and the Third and Ninth Circuit Court of Appeals.[3] (Doc. 27 at 1-3). The Court therefore finds it unnecessary to repeat the same information here. Moreover, Petitioner has not objected to the information in the background section. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all . . . of any issue that is not the subject of an objection.”).

         II. Analysis

         The district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(same). The judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b)(3).

         Respondents argue, in their reply to Petitioner's objection to the R&R, that the Ninth Circuit decision to vacate his stay of removal renders Petitioner's claims moot. (Doc. 23). Respondents also move to dismiss the Petition on the ground that it is duplicative of the petition filed by Petitioner in the District of New Jersey.

         A. Petitioner's Claims are Moot When a stay of a removal order is lifted by the appellate court, the order of removal becomes administratively final and the statute governing the detention of a petitioner shifts from 8 U.S.C. § 1226, and is subsequently governed by 8 U.S.C. § 1231(a). See Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 947 (9th Cir. 2008) (“If an alien has filed a petition for review with [the circuit] court and received a judicial stay of removal, the ‘removal period' under § 1231(a) does not begin until [the] court ‘denies the petition and withdraws the stay of removal.'”). Moreover, a case becomes moot when it no longer satisfies Article III standing requirements. “This case- or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478 (1990).

         Before this Court, Petitioner asserts that he was detained pursuant to 8 U.S.C. § 1226(a). (Doc. 1 at 7). The Petition seeks habeas relief based on the stay of removal that was issued by the Ninth Circuit, arguing that his “prolonged detention in excess of six months” entitles him to a bond determination hearing. (Doc. 1 at 7). At the time the Petition was filed in this Court, the PFR and the stay of removal before the Ninth Circuit were the only pending matters justifying detention pursuant to 8 U.S.C. § 1226(a). As discussed above, the Ninth Circuit vacated the stay of removal on October 11, 2017, finding that it lacked jurisdiction over the Petition. (Doc. 17-1). When the Ninth Circuit denied the PFR and lifted the stay of the removal order, the order of removal became administratively final, and Petitioner was no longer being held pursuant to 8 U.S.C. § 1226(a), but rather 1231(a). See Casas-Castrillon, 535 F.3d at 94. The Court can no longer grant the relief Petitioner seeks pursuant to 8 U.S.C. § 1226(a). See Lewis, 494 U.S. at 477-478. Therefore, Petitioner's claims for relief based on his detention under 8 U.S.C. § 1226(a) are moot and the Court will adopt the R&R and grant Respondents' Motion to Dismiss the Petition.

         B. Petition is Duplicative

         Having found that the Petition is moot, the Court need not address the issue of duplicative petitions, but will briefly discuss the issue. As an additional and independent ground for adopting the R&R, the Petition is also duplicative to the Petition filed in New Jersey.

         Federal courts “retain broad powers to prevent duplicative or unnecessary litigation.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). “A suit is duplicative if the claims, parties, and available relief do not significantly differ between the two actions.” iStar RC Paradise Valley LLC v. Five Star Dev., No. CV-10-2191- PHX-GMS, 2011 WL 4852293, at *8 (D. Ariz. Oct. 13, 2011) (quoting Barapind v. Reno,72 F.Supp.2d 1132, 1145 (E.D. Cal.1999) (internal citation omitted)). Where a petitioner files more than one suit in more than one district with similar claims, parties, and relief, “the court has discretion to abate or dismiss the second action.” Id.; see also Alltrade, Inc. v. Uniweld Products, Inc., 946 F.2d 622, 625 (9th Cir. 1991) (citing Pacesett ...


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