United States District Court, E.D. Wisconsin
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
(DKT. NO. 1).
PAMELA PEPPER United States District Judge.
August 4, 2016, petitioner Jesus Marquez Candelaria filed a
petition for writ of habeas corpus under 28 U.S.C.
§2241. Dkt. No. 1. The petition indicates that, at that
time, the petitioner was being held at the Dodge County
Detention Center. Id. at 1. His petition challenged
his detention by Immigration and Customs Enforcement
(“ICE”) and his pretrial detention at the
Milwaukee County jail. Id. at 2. The petitioner has
since been released, which moots his petition.
petition indicates that on July 15, 2016, the petitioner went
to the police department, because he'd learned from his
neighbors that the police had visited his residence.
Id. at 10. Once at the police station, he learned
that there was a warrant for his arrest based on allegations
of sexual assault. Id. The petitioner indicated that
the arrest was the result of a false allegation made by his
child's mother. Id. at 11. Consequently, he
claims that the police illegally arrested and detained him
for over forty-eight hours. Id. at 4, 10. In support
of this allegation, the petitioner attached an exhibit with
several inmate property receipts and a letter from the
Milwaukee County Sheriff, stating that the petitioner was
incarcerated in the Milwaukee County jail from July 18, 2016
to July 21, 2016. Dkt. No. 1-1. The petitioner eventually was
turned over to Immigration and Customs Enforcement
(“ICE”). Dkt. No. 1 at 11.
petitioner alleged that he never received a preliminary
hearing or a detention hearing, and that he was not guilty of
anything. Dkt. No. 1 at 10-12. He asked this court to release
him from custody. Id.
the petitioner filed this petition, he appeared before an
immigration judge. Dkt. No. 7-1 at 2. On March 29, 2017, the
respondent filed a “Suggestion of Mootness, ”
suggesting that the case was moot because the petitioner had
been released from ICE custody on January 6, 2017. Dkt. No.
11 at 1. The court agrees that the petition now is moot.
the law allows authorities to detain an alien for ninety days
pending removal, 8 U.S.C. §1231(a)(1)(A), some aliens,
including those who have committed certain crimes or have
“been determined by the Attorney General to be a risk
to the community or unlikely to comply with the order of
removal, may be detained beyond the removal period . . .
.” 8 U.S.C. §1231(a)(6). This detention period is
not indefinite. Zadvydas, 533 U.S. 678, 701 (2001).
The Supreme Court has held that a period of detention remains
presumptively reasonable for six months. Id.;
but see 8 C.F.R. §241.14. An alien who wishes
to challenge the length of his detention may file a petition
for a writ of habeas corpus. Zadvydas, 533
U.S. at 687 (citing 28 U.S.C. §2241(c)(3)).
from custody does not automatically render a habeas
petition moot. The “in custody” requirement of 28
U.S.C. §2241(c) is satisfied at the time of the filing
of the petition. Spencer v. Kemna, 523 U.S. 1, 7
(1998); Othman v. Gonzales, No. 07-cv-13, 2010 WL
1132669, at *2 (S.D. Ill., Mar. 1, 2010) (finding a
post-removal detainee “who is released while his
petition for writ of habeas corpus is pending still
meets the ‘in custody' requirement; his release
does not necessarily render his petition moot.”) After
a habeas petitioner has been released from custody,
however, the petitioner must demonstrate that some
“concrete and continuing injury” or
“collateral consequences” resulted from the
detention in order for the petition to present a continued
case or controversy. Spencer, 523 U.S. at 7
(explaining that the petitioner still must present a
“case or controversy” under Article III, §2
of the Constitution for the court to be able to grant relief
to the petitioner.) “This means that, throughout the
litigation, the [petitioner] ‘must have suffered, or be
threatened with, an actual injury traceable to the
[respondent] and likely to be redressed by a favorable
judicial decision.'” Id. (quoting
Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477
(1990)). If the injury cannot be redressed by a favorable
judicial decision, the court must dismiss the petition as
moot. A.M. v. Butler, 360 F.3d 787, 790 (7th Cir.
2004) (citations omitted).
the petitioner challenged his arrest and sought to be
released from custody. Dkt No. 1 at 12. The injury that he
alleged was that he had been detained, without a preliminary
hearing and without bail, on what he alleged were false
charges. He has not alleged that he remains subject to some
order or restriction since his release (indeed, the court has
received no communications from the petitioner since he filed
the petition on August 4, 2016) . See Alvarez v.
Holder, 454 F. App'x 769, 772-73 (11th Cir. 2011)
(concluding that a habeas petition was not mooted by
the petitioner's release from ICE custody because he
remained subject to a supervised release order, which the
petitioner challenged). The petitioner is no longer being
detained-lawfully or otherwise. The court has no basis for
concluding that there is a “concrete and continuing
injury” to support the petition.
court has the discretion to provide the petitioner with the
opportunity to file a pleading detailing any injury. This
petitioner, however, has not updated his address since his
release. The petitioner failed to file a reply to the
respondent's Suggestion of Mootness. It appears that he
has moved on with his life, and has no wish to continue this
litigation. If, within a reasonable amount of time, the
petitioner files a motion to reopen, the court will consider
CERTIFICATE OF APPEALABILITY
Rule 11(a) of the Rules Governing Section 2254 Cases, the
court must consider whether to issue a certificate of
appealability. A court may issue a certificate of
appealability only if the applicant makes a substantial
showing of the denial of a constitutional right. See
28 U.S.C. §2253(c)(2). The standard for making a
“substantial showing” is whether
“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