Opinion
Case No. 02 C 4815
July 17, 2002
ORDER
Petitioner Michael Stewart seeks a writ of habeas corpus requiring respondents, Attorney General John Ashcroft and Brian Perryman, District Director of the Immigration and Naturalization Service ("INS"), to justify his continued detention. Because Stewart has no cash, no savings or checking account, a zero balance in his resident account summary, and no regular source of income, his petition to proceed without prepayment of fees is granted. His motion for appointment of counsel, on the other hand, is denied without prejudice. This court will sua sponte reconsider the counsel-appointment question if and when Stewart meets the formal requirements for filing a habeas petition.
Apart from the caption, signature line, and exhibits, Stewart's habeas petition contains no particularized allegations of fact. Instead, it consists almost entirely of legal arguments and conclusions based on the United States Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001). A standard-form complaint of this kind may or may not be sufficient under Fed.R.Civ.P. 8, but, standing alone, it fails to meet the statutory requirements for a habeas petition. 28 U.S.C. § 2242 ("Application for a writ of habeas corpus . . . shall allege the facts concerning the applicant's commitment or detention. . . ."); see also Rules Governing Section 2254 Cases, Rule 4 advisory committee note ("[N]otice pleading is not sufficient, for the petition is expected to state facts that point to a real possibility of constitutional error.") (internal quotation marks omitted).
As a federal detainee, Stewart proceeds under section 2241, not section 2254. However, the Rules Governing Section 2254 Cases may be applied in other habeas proceedings "at the discretion of the United States district court." Rule 1(b).
The question becomes whether the exhibits contain sufficient facts to save the petition. In Zadvydas, the Court held that:
After [a] 6-month period [of post-removal order detention], once the alien 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. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.533 U.S. at 701.
Only two facts of relevance to Stewart's legal arguments emerge from the exhibits: (1) he is subject to an order of removal; and (2) he has been "detained mandatorily" by the INS since June 6, 2001. However, Stewart does not indicate when his order of removal became final, so it is impossible to tell whether he meets the six-month hurdle. In addition, although Stewart alleges that "[t]here is no reasonable likelihood that Petitioner can be removed from the United States in the foreseeable future" (Pet. ¶ 9), he provides no factual support for this legal conclusion. Stewart does not maintain that his country of origin has no extradition treaty with the United States or that some other barrier prevents his immediate removal. Cf. Zadvydas, 533 U.S. at 685-86 (describing plights of a country — less alien and an alien from country with no extradition treaty with the United States). Stewart does attach a copy of an order granting his motion to file a late notice of appeal in a state criminal case, but it is impossible to determine the relevance of this document without at least knowing the grounds for his removal.
If this appeal is from the conviction justifying Stewart's removal, then its pendency may undermine the removal order. See Will v. INS, 447 F.2d 529, 533 (7th Cir. 1971) ("[A]s long as a direct appeal is pending, it is sufficient to negate finality of conviction for the purposes of [the immigration laws]."). Since Will, Congress has defined the term "conviction" to include "a formal judgment of guilt of the alien entered by a court." 8 U.S.C. § 1101(a)(48)(A). Whether this eliminated the finality requirement is an open question. See Griffiths v. INS, 243 F.3d 45, 53 n. 3 (1st Cir. 2001) (declining to reach the issue); id. at 54 (suggesting that finality might still be required).
Stewart has failed to "set forth in summary form the facts supporting each of the grounds" outlined in his petition. Rules Governing Section 2254 Cases, Rule 2(c). Accordingly, the clerk is ordered to return the petition to Stewart together with a copy of this order. Rule 2(e). The clerk shall retain a copy of the petition and keep the case file open. Id. Should Stewart decide to revise and resubmit his petition, he should provide the following information: (1) the date and basis of his final removal order, (2) an update as to the status of his motion before the Board of Immigration Appeals to reopen or reconsider, (3) the subject matter and status of his state court appeal, (4) the total period of time he has spent in INS confinement, and (5) his country of origin. In addition, Stewart should attempt to clarify whether he intends to challenge only the lawfulness of his continued detention or also the underlying order of removal. As to the detention claim, Stewart needs to provide facts supporting his allegation that removal in his case is not likely in the foreseeable future. If Stewart intends to challenge the order of removal itself, he needs to provide some explanation for why he believes the removal order to be invalid. Stewart may also want to attach copies of any additional documents in his possession that relate to his criminal and removal proceedings.