“[W]e do not believe that passing about of the body of a prisoner form one custodian to another after a writ of habeas corpus has been applied for can defeat jurisdiction of the Court to grant or refuse the writ on the merits of the application.”
How later courts described this case
- “[W]e do not believe that passing about of the body of a prisoner form one custodian to another after a writ of habeas corpus has been applied for can defeat jurisdiction of the Court to grant or refuse the writ on the merits of the application.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LUCAS DOS REIS LAURINDO,
Petitioner,
v. Case No.: 2:20-cv-240-FtM-38MRM
UNITED STATES CITIZENSHIP
AND IMMIGRATION SERVICES
(USCIS),
Defendant.
/
OPINION AND ORDER1
Before the Court is Petitioner Lucas Dos Reis Laurindo’s Petition for Writ of
Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) filed on February 24, 2020. Respondent
filed a Response (Doc. 8) on March 9, 2020. Petitioner was informed that he could file a
reply but did not file. For the following reasons, the Court denies the Petition.
BACKGROUND
Petitioner is a citizen of Brazil and entered the United States on a B2 tourist visa
on August 24, 2019, with authorization to remain in the country until February 23, 2020.
Petitioner was involved in a motor vehicle accident leading to the death of four individuals.
(Doc. 1, Ex. A at ¶ 2). As part of the Florida Highway Patrol’s investigation of the accident,
officers discovered that Petitioner was employed by Cramcrete LLC as a fulltime truck
driver, in violation of his B2 visa. (Doc. 1, Ex. A at ¶ 3).
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Court does not endorse, recommend, approve, or guarantee any third parties or the services or products
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availability and functionality, and a failed hyperlink does not affect this Order.
U.S. Border Patrol and Customs Agents arrested Petitioner on February 21,
2020, at the Orlando International Airport as he was waiting to board a plane for Dallas
and from there to Brazil. (Doc. 8 at Ex. B ¶ 4). Petitioner was issued a notice to appear
that same day charging him with removability under 237(a)(1)(C)(i) for failure to maintain
or comply with the conditions of the non-immigrant B2 visa. Petitioner remained in
custody from February 21, 2020, until February 24, 2020, in the Orange, County Florida
Jail. (Doc. 1, Ex B ¶ 5-6). Petitioner was transferred to Krome Servicing Process Center
in the Southern District of Florida on February 24, 2020, and the next day he was sent to
the Glades County Detention Center, in Glades County, Florida. (Doc. 1, Ex B ¶ 5-6).
Petitioner filed this Petition in the Middle District of Florida, Orlando Division which
transferred the case to the Fort Myers Division.
JURISDICTION AND TRANSFER
Petitioner initiated this by filing his Petition with the United States District Court in
for the Middle District of Florida, Orlando Division where he was detained after his arrest.
After service upon and a Response from Respondents, the Orlando Division transferred
the case to this Court. The Orlando Division found the proper venue to be the Fort Myers
Division because Petitioner had been transferred from Orlando to Krome to Moore Haven,
in Glades County after filing his Petition.
Jurisdiction attaches upon the initial filing for habeas corpus relief and jurisdiction
is not destroyed upon transferring petitioner and custodial change.
Once the court has acquired jurisdiction in a habeas corpus proceeding,
such jurisdiction continues until the court has performed all acts necessary
to grant all relief as is indicated in its jurisdictional power. Even the release
of the prisoner from custody prior to completion of proceedings on the
application, or transfer of custody to another person or place, will not divest
the court of jurisdiction.
39 C.J.S. Habeas Corpus § 285 (Feb. 2020), citing inter alia, Ex parte Catanzaro, 138
F.2d 100, 101 (3d Cir. 1943) (“[W]e do not believe that passing about of the body of a
prisoner form one custodian to another after a writ of habeas corpus has been applied for
can defeat jurisdiction of the Court to grant or refuse the writ on the merits of the
application.”). The Supreme Court reaffirmed the continuing jurisdiction of the court once
the habeas rule is satisfied. “Endo2 stands for the important but limited proposition that
when the Government moves a habeas petitioner after he properly files a petition naming
his immediate custodian, the District Court retains jurisdiction and may direct the writ to
any respondent within its jurisdiction who has legal authority to effectuate the prisoner's
release.” Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004). This principle ingrained in
habeas law prevents “the Kafkasque3 specter of supplicants wandering endlessly from
one jurisdiction to another in search of a proper forum only to find that it lies elsewhere.”
Eisel v. Sec’y of the Army, 477 F2d. 1251, 1258 (D.C. Cir. 1973). See also Griffin v.
Ebbert, 751 F.3d 288, 290 (5th Cir. 2014)(collecting cases). Indeed, Petitioner has been
moved three times since being incarceration and placed in custody of ICE. But despite
his recent movement to Moore Haven, he remains in an ICE contracted detention facility.
2 Ex parte Mitsuye Endo, 323 U.S. 283, 304-306 (1944). In Endo, a Japanese-American citizen who was
interned in California by the War Relocation Authority (WRA) sought relief by filing a § 2241 petition in the
Northern District of California, naming as a respondent her immediate custodian. Subsequent to filing the
petition, the Government moved her to Utah. The Supreme Court held, although the prisoner's immediate
physical custodian was no longer within the jurisdiction of the Northern District, the Northern District
“acquired jurisdiction in this case and that [Endo's] removal . . . did not cause it to lose jurisdiction where a
person in whose custody she is remains within the district.” Id., at 306. The Court held under these
circumstances, the assistant director of the WRA, who resided in the Northern District, would be an
“appropriate respondent” to whom the District Court could direct the writ. Id., at 304-305.
3 The term describes an individual’s unnecessary complicated and frustrating experiences, especially within
a bureaucracy.
While there is no per se rule which prohibits transferring this action back and
arguably transfer by the appellate court if appealed by petitioner might be proper, see
Griffin, 751 F.3d 290, (on appeal by petitioner finding jurisdiction attached once petition
properly filed and vacating transferee’s dismissal of petition and transferring habeas back
to original court for expeditious hearing on merits or approval of substitution of custodian),
as a general rule the transferee court should not re-transfer a case “except under the
most impelling and unusual circumstances.” In re Crager Industries, 706 F. 2d 503, 505
(5th Cir. 1983). The Court will rule of the merits of the Petition to avoid the further delay
of an adjudication of the underlying Petition.
DISCUSSION
Petitioner argues his Habeas Petition should be granted releasing him from
custody because his arrest violated his Fifth Amendment right to due process. The Fifth
Amendment states that no person shall be deprived of life, liberty, or property without due
process of law. Respondent argues that Petitioner’s arrest and detention were lawful, his
Petition is premature because Petitioner failed to exhaust his administrative remedies,
and his claim is barred by 8 U.S.C. § 1252(g).
The Supreme Court has held a six-month period of detention is presumptively
reasonable to effectuate removal; after which, an alien is eligible for conditional release if
he can show there is “no significant likelihood of removal in the reasonable foreseeable
future.” Clark v. Martinez, 543 U.S. 371, 378 (2005) (quoting Zadvydas, 533 U.S. at 701).
This six-month presumptively reasonable period must have expired when a petition is
filed. Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002).
When Petitioner filed his Petition, his six-month period had not yet expired. Agents
arrested Petitioner and took him into custody on February 21, 2020, he was transferred
to Krome on February 24, 2020 and filed his Petition on the same day. When this Petition
was filed, Petitioner had been in custody only three days, considerably less than the 180-
day presumptive reasonable period.
The Petition is dismissed without prejudice as premature. Assuming Petitioner is
still in custody at the expiration of the 180-day presumptive reasonable period, he may
file a new petition, accompanied by the requisite filing fee or motion to proceed in forma
pauperis, if he wishes to contest his continued detention.4
Accordingly, it is now
ORDERED:
Petitioner Lucas Dos Reis Laurindo’s Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 (Doc. 1) is DISMISSED without prejudice, as premature.
DONE and ORDERED in Fort Myers, Florida this 9th day of April 2020.
UNITED STATES DISTRICT JUDGE
SA: FTMP-2
Copies: All Parties of Record
4 Detention in excess of the six-month period alone is not sufficient to warrant relief. A petitioner additionally
must set forth “good reason to believe that there is no significant likelinood of removal in the reasonably
foreseeable future.” Zadvydas v. Davis, 533 U.S. at 701.