United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
November 3, 2017, Allan Wasonga Onyango
(“Onyango”) filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241, challenging his
detention in connection with removal proceedings. (Docket
#1). The Court documented the factual and procedural history
of this proceeding in its screening order. (Docket #4). Put
simply, Onyango claims that his removal to Kenya has been
interminably delayed, in violation of Zadvydas v.
Davis, 533 U.S. 678, 682 (2001).
Court permitted this action to proceed past screening and
ordered Respondent, the Dodge County Sherriff, to provide
reasons why Onyango's removal had not yet occurred. To
that end, Respondent filed a legal brief and a declaration
from deportation officer Michael Landmeier
(“Landmeier”) on December 14, 2017. (Docket #7,
#8). Respondent contended that Onyango's removal was
“imminent” because needed travel documents had
been obtained from the government of Kenya and Onyango's
deportation had been scheduled. (Docket #7 at 5).
to the Court's screening order, Onyango was to file a
brief in support of his petition within thirty days of
Respondent's filing. See (Docket #4 at 6-7).
That deadline has passed, and Onyango has filed nothing.
Perhaps he has already been removed? Landmeier did not say
the date for which Onyango's deportation had been
scheduled. Whether because his removal has been effected or
because he simply failed to timely file his brief, the Court
is left with no basis on which to conclude that Onyango's
removal is not reasonably foreseeable. In other words,
without any argument or evidence from Onyango beyond the
allegations of his petition, the Court is obliged to find
that Respondent has rebutted the presumption that
Onyango's ongoing detention is unreasonable.
Zadvydas, 533 U.S. at 699-701. As a result, the
Court must dismiss Onyango's petition.
Rule 11(a) of the Rules Governing Section 2254 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Onyango must make a
“substantial showing of the denial of a constitutional
right” by establishing that “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 to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). Further, when the Court has denied relief on
procedural grounds, the petitioner must show that jurists of
reason would find it debatable both that the “petition
states a valid claim of the denial of a constitutional
right” and that “the district court was correct
in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). No reasonable jurists could debate
whether Onyango's claims, which he failed to support with
evidence or argument, have merit. As a consequence, the Court
is compelled to deny him a certificate of appealability.
the Court closes with some information about the actions that
Onyango may take if he wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within
thirty (30) days of the entry of judgment. See Fed.
R. App. P. 3, 4. This Court may extend this deadline if a
party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day
deadline. See Id. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. Id.
A party is expected to closely review all applicable rules
and determine what, if any, further action is appropriate in
IT IS ORDERED that the instant petition for
a writ of habeas corpus (Docket #1) be and the same is hereby
IS FURTHER ORDERED that this action be and the same
is hereby DISMISSED; and
IT IS FURTHER ORDERED that a certificate of
appealability be and the same is hereby
Clerk of Court is directed to enter judgment accordingly.
There is a small discrepancy between
Respondent's submission and the Court's screening
order. The Court directed Respondent to either answer the
petition or file a motion to dismiss, (Docket #4 at 6-7), and
his brief in opposition to the petition is neither of those
things. While respondents in future cases would do well to
abide by the Court's prerogatives regarding how to
proceed in habeas cases, given the simplicity of the issues
presented in Onyango's case, a formal answer or motion
would have been unnecessary. In any event, it is not at all
apparent that Onyango failed to timely file a brief based on
Respondent's procedural foible.
Rule 1(b) of those Rules and Civil
Local Rule 9(a)(2) give this Court the authority to apply the
rules to other habeas corpus cases, including those ...