United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION REGARDING PETITIONER'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS AND FURTHER RECOMMENDATION FOR SUMMARY DISMISSAL
KATHERINE A. ROBERTSON, Magistrate Judge.
On March 4, 2015, petitioner Eddy Placide, a citizen of Haiti and an immigration detainee currently held at the Franklin County Jail and House of Correction in Greenfield, Massachusetts, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, as well as a Motion for Leave to Proceed In Forma Pauperis, which was referred to this court.
Petitioner states that on January 2, 2014, Immigration and Customs Enforcement ("ICE") initiated removal proceedings against him, and he was taken into ICE custody on January 27, 2014. Petitioner further represents that he was ordered removed on April 10, 2014; that the Board of Immigration Appeals dismissed his appeal on April 11, 2014; and that, on September 11, 2014, his removal order became final. Therefore, according to petitioner, as of March 10, 2015, he will have been in custody for six months and it unlikely he will be removed in the reasonably foreseeable future. Petitioner, who is self-represented, now seeks immediate release under Zadvydas v. Davis, 533 U.S. 678 (2011).
For the reasons stated below, this court recommends that petitioner's motion for leave to proceed in forma pauperis and § 2241 petition be denied without prejudice.
A. Authority to Screen § 2241 Petition
The Rules Governing Section 2254 and 2255 Cases may be applied at the discretion of the district court to other habeas petitions. See Rule 1(b) of the Rules Governing Habeas Corpus Cases Under Section 2254. Under Rule 4(b), the court is required to examine a petition, and if it "plainly appears from the face of the motion... that the movant is not entitled to relief in the district court, " the court "shall make an order for its summary dismissal." Rule 4(b) of the Rules Governing Habeas Corpus Cases Under Section 2254; McFarland v. Scott, 512 U.S. 849, 856 (1994) (habeas petition may be dismissed if it appear to be legally insufficient on its face). A petition for a writ of habeas corpus may also be summarily dismissed if it fails to set forth facts that give rise to a cause of action under federal law. 28 U.S.C. § 2243; Marmol v. Dubois, 885 F.Supp. 444, 446 (D. Mass. 1994).
B. Petitioner's Motion to Proceed In Forma Pauperis
A party filing a habeas action in this court must either (1) pay the $5.00 filing fee for habeas corpus actions; or (2) seek leave to proceed without prepayment of the filing fee. See Fee Schedule for the District of Massachusetts ($5.00 fee to file writ of habeas corpus); 28 U.S.C. § 1914(a) (fees); 28 U.S.C. § 1915 (proceeding in forma pauperis). A motion for leave to proceed in forma pauperis, or to proceed without prepayment of fees, must be accompanied by "a certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution." Rule 3(a) of the Rules Governing Section 2254 Cases.
Here, although petitioner has filed a completed application to proceed without prepaying fees or costs, he has failed to include a certified prison account statement in support of his motion. Thus, it is this court's recommendation that petitioner's motion to proceed in forma pauperis (Docket No. 2) be denied without prejudice. Ordinarily, a petitioner would be granted additional time to comply with this requirement, but because, for the reasons set forth below, this court recommends that the instant petition be summarily dismissed, additional time need not be granted in this instance.
C. Summary Dismissal - Ripeness of Petitioner's Claim
Petitioner alleges that his removal order became final on September 11, 2014, and that his removal has not been effectuated within the presumptively reasonable six-month period set forth in Zadvydas, thereby entitling him to habeas relief. According to petitioner, the six-month period will expire on March 10, 2015. This action was filed on March 4, 2015.
Section 1231 of Title 8 of the United States Code provides that the Attorney General shall remove individuals who have been ordered removed within ninety (90) days, and that he may detain such individuals during this "removal period." Immigration and Nationality Act ("INA") § 241(a)(1)(2), 8 U.S.C. § 1231(a)(1)(2). This 90-day removal period is triggered on the latest of three dates. See INA § 241(a)(1)(B), 8 U.S.C. § 1231(a)(1)(B). Section 1231 also provides that if removal is not effected within 90 days, a detainee may be released under supervision, see 8 U.S.C. § 1231(a)(3), but that certain classes of individuals, including those convicted of certain crimes, may continue to be detained after the 90-day removal period. INA § 241(6), 8 U.S.C. § 1231(a)(6).
In Zadvydas, the Supreme Court held that under the Due Process clause, where an alien has been detained for a post-removal period of six months pursuant to the provisions of 8 U.S.C. § 1231(a)(6) and provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. Zadvydas, 533 U.S. at 701. If a habeas court determines that removal is not "reasonably foreseeable, " then it should order the alien released from custody, subject to conditions of supervised release "appropriate in the circumstances." Id. at 699-700. In other words, "after six months, if an individual provides good reason to believe that there is no significant likelihood of removal ...