# Malachowski v. United States

> District Court, W.D. Oklahoma · September 27, 2021

URL: https://www.frixlaw.com/law-library/cases/10389149

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 27, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

MARCEL MALACHOWSKI, )
)
Petitioner, )
)
v. ) Case No. CIV-20-736-G
)
UNITED STATES OF AMERICA, )
)
Respondent. )

ORDER
Petitioner Marcel Malachowski filed a Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2241 (Doc. No. 1) in this Court. In accordance with 28 U.S.C. § 636(b)(1), the
matter was referred to Magistrate Judge Shon T. Erwin for preliminary review.
On September 10, 2020, Judge Erwin issued a Report and Recommendation (“R. &
R.,” Doc. No. 9), recommending that the Petition be dismissed on screening. Petitioner
timely filed an Objection to the R. & R. (Doc. No. 11).
Pursuant to governing authority, the Court reviews de novo the portions of the R. &
R. to which specific objections have been made. See United States v. 2121 E. 30th St., 73
F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Having
conducted this de novo review, the Court finds as follows.
I. Background
Petitioner, a federal prisoner appearing pro se, alleges that he is a Canadian citizen
who “was found on the Akwesasne Indian Reservation” in upstate New York and taken
into custody by U.S. Border Patrol agents on October 31, 2008. Pet. at 2, 5; Pet’r’s Br.
(Doc. No. 1-2, at 1-12) at 5. Petitioner alleges that two administrative immigration charges
were then issued against him by the United States and he was deemed “inadmissible” under
8 U.S.C. § 1182(a)(7)(A)(i)(I). See Pet. at 2; Pet’r’s Br. at 7; DHS Report (Doc. No. 1-2,

at 17); EARM (Doc. No. 1-2, at 18). Those charges resulted in an “expedited removal
order”—i.e., a determination of inadmissibility and expedited removal proceedings under
8 U.S.C. § 1225(b)(1). Pet’r’s Br. at 7; see Notice and Order of Expedited Removal (Nov.
1, 2008) (Doc. No. 1-2, at 19).
The Petition raises three Grounds for relief connected to the expedited removal

order. First, Petitioner argues that the expedited removal order should not have issued
because Petitioner, as a “registered North American Indian,” “was in his native right to be
present within the Akwesasne Indian Territory on October 31, 2008.” Pet’r’s Br. at 8.
Second, Petitioner contends that he had not effected “entry” into the United States as that
term is defined for immigration purposes. Id. at 8-9. Third, Petitioner disputes his ability

to be liable for the conduct underlying the removal charges because his “native status
provides actual innocence” and renders him “neither deportable” nor “inadmissible.” Pet.
at 7; Pet’r’s Br. at 9-11.
On December 24, 2009, Petitioner was convicted on multiple criminal charges in
the U.S. District Court for the Northern District of New York. See Pet’r’s Br. at 7; United

States v. Malachowski, 623 F. App’x 555, 556-57 (2d Cir. 2015). These charges included
unlawful entry into the United States on October 31, 2008, and unlawful re-entry into the
United States after having been removed on that date. See J., United States v. Malachowski,
No. 5:08-cr-701-DNH (N.D.N.Y. Dec. 24, 2009). In Ground Four, Petitioner argues that
his defense counsel’s representation in that criminal case was constitutionally inadequate
under the Sixth Amendment because counsel failed to adequately investigate Petitioner’s
native status and failed to “mount[] a defense to the immigration counts” based on that

status. Pet’r’s Br. at 11 (citing Strickland v. Washington, 466 U.S. 668 (1984)).
The Petition seeks to have the Court “request immigration court to re-open
proceedings and decide whether an expedited removal order should have been utilized.”
Pet. at 8.1
II. Discussion

In the R. & R., Judge Erwin summarized Petitioner’s factual allegations and legal
claims, as well as the applicable standards of review. Judge Erwin recommended that
Grounds One and Three, construed as a request for judicial review of the 8 U.S.C. §
1225(b)(1) expedited removal order, be dismissed as untimely. He further recommended
that Ground Two, also viewed as an attempt to seek review of the § 1225(b)(1) expedited

removal order, be dismissed based upon a lack of jurisdiction. Finally, he recommended
that Ground Four be construed as a request for relief under 28 U.S.C. § 2255 and likewise
dismissed. See R. & R. at 1-9.
Plaintiff’s Objection largely repeats the arguments already raised and rejected in the
R. & R. and does not challenge the Magistrate Judge’s characterization of the applicable

standards of review. The Court herein addresses those objections that are “sufficiently

1 Although not addressed by the Petition, the record indicates that Petitioner’s habeas
claims are not moot due to the collateral consequences of his 2008 removal. See Bansci v.
Nielsen, 321 F. Supp. 3d 729, 734-35 (W.D. Tex. 2018) (citing 8 U.S.C. §
1182(a)(9)(A)(i)); see also Pet’r’s Obj. at 13 (discussing an “immigration detainer”).
specific” to preserve the relevant disputed issues for de novo review. 2121 E. 30th St., 73
F.3d at 1059; see also United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001)
(“[T]heories raised for the first time in objections to the magistrate judge’s report are

deemed waived.”).
A. Petitioner’s First Objection
In reciting the factual background of Petitioner’s legal claims, the R. & R. states:
“On October 31, 2008, Border Patrol agents arrested Petitioner for illegally entering the
United States near the Canadian border.” R. & R. at 2 (citing DHS Report at 17). Petitioner

objects that this finding is erroneous and that the Magistrate Judge’s error “prejudiced
evaluation of this matter.” Pet’r’s Obj. at 3. Liberally construed, Petitioner argues that the
Magistrate Judge failed to appreciate that the legal claims raised in Counts One through
Three are challenging the propriety of the “administrative proceedings” of the U.S. Border
Patrol rather than Petitioner’s later federal criminal conviction. See id. at 3-5. Petitioner

suggests that this error led the Magistrate Judge to ignore or reject Petitioner’s arguments
as to why those immigration proceedings were improper. See id.
The Court disagrees. As a threshold matter, the R. & R.’s statement is directly
supported by the law enforcement reports submitted by Petitioner as part of his pleading.
These records clearly reflect that on October 31, 2008, Petitioner was apprehended by the

U.S. Border Patrol, charged with being an “inadmissible” alien under 8 U.S.C. §
1182(a)(7)(A)(i), and subjected to expedited removal. See DHS Report at 7; EARM at 18;
Notice and Order of Expedited Removal at 19; see also 8 U.S.C. § 1182(a)(7)(A)(i)(I); id.
§ 1225(b)(1)(A)(i) (“If an immigration officer determines that an alien . . . who is arriving
in the United States . . . is inadmissible under . . . [8 U.S.C. § 1182(a)(7)], the officer shall
order the alien removed from the United States without further hearing or review . . . .”).
As to the broader objection, the remainder of the R. & R. reflects that the Magistrate

Judge accurately characterized Petitioner’s Grounds One through Three as attacking the
U.S. Border Patrol proceedings and findings rather than his later criminal conviction. The
R. & R. declined to reach the merits of Petitioner’s Grounds One through Three because
the Magistrate Judge found that those claims should be dismissed on screening pursuant to
the relevant statutes. There is no reasonable suggestion of undue prejudice arising from

the recitation of background facts.
B. Petitioner’s Second Objection
Next, Petitioner challenges the Magistrate Judge’s failure to address the merits of
Grounds One through Three of the Petition, including Petitioner’s argument that “the
expedited removal procedure should not have been used.” Pet’r’s Obj. at 5-6.

The Magistrate Judge concluded that Petitioner’s challenges to expedited removal
were governed by 8 U.S.C. § 1252 and subject to the restrictions upon the Court’s authority
imposed by that statute. See R. & R. at 4-5.
The scope of judicial review of orders of removal under § 1225(b)(1) is
extremely narrow. With very limited exceptions, “no court shall have
jurisdiction to review . . . any individual determination or to entertain any
other cause or claim arising from or relating to the implementation or
operation of an order of removal pursuant to section 1225(b)(1).” 8 U.S.C.
§ 1252(a)(2)(A)(i). Specifically, no court has jurisdiction to review “a
decision by the Attorney General to invoke the provisions of [§ 1225(b)(1)],”
“the application of [that] section to individual aliens,” or “procedures and
policies adopted by the Attorney General to implement [that section].” Id. at
§ 1252(a)(2)(A)(ii)-(iv). Judicial review of determinations made under §
1225(b)(1) is available in habeas corpus proceedings, but such review is
limited to determinations of—
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under such section,
and
(C) whether the petitioner can prove by a preponderance of the
evidence that the petitioner is an alien lawfully admitted for
permanent residence, has been admitted as a refugee . . . or has been
granted asylum.
Id. at § 1252(e)(2)(A)-(C).
Vaupel v. Ortiz, 244 F. App’x 892, 894-95 (10th Cir. 2007) (omissions and alterations in
original); accord Macias-Guerrero v. Barr, 817 F. App’x 660, 661 (10th Cir. 2020)
(explaining that judicial review of expedited removal orders is available only “to the extent
allowed by § 1252(e)”). Stated differently, “the limited habeas review available under §
1252(e)(2) does not permit aliens to challenge the validity of the expedited removal order”
but only “to claim . . . that the removal order was issued in error because the alien is legally
entitled to be present in the United States, or that a removal order was never issued.”
United States v. Barajas-Alvarado, 655 F.3d 1077, 1085 (9th Cir. 2011).
The Magistrate Judge determined that judicial review of Petitioner’s Ground Two
(challenging Petitioner’s alleged “entry” in the United States) was not permitted, as the
claim did not fall within any § 1252(e)(2) basis for habeas relief. See R. & R. at 5.
Petitioner has not shown otherwise, and the Court concurs that Ground Two must be
dismissed due to a lack of jurisdiction. See 8 U.S.C. § 1252(a)(2)(A); Macias-Guerrero,

817 F. App’x at 661-62; see also Fed. R. Civ. P. 12(h)(3); Arbaugh v. Y & H Corp., 546
U.S. 500, 506 (2006).
The Magistrate Judge further determined that Petitioner’s Grounds One and Three
arguably were encompassed by the § 1252(e)(2) statutory limitations, such that relief is
potentially available in federal habeas corpus proceedings. See R. & R. at 5. The

Magistrate Judge concluded, however, that these Grounds are time barred and should
therefore be dismissed. See id. (citing 8 U.S.C. § 1252(e)(3)(B)).
The Court notes that it is not clear that the 60-day deadline of 8 U.S.C. §
1252(e)(3)(B) applies to this 28 U.S.C. § 2241 habeas corpus action. See 8 U.S.C. §
1252(e)(3) (governing “[c]hallenges on validity of the system”); id. § 1252(e)(3)(B)

(prescribing a 60-day deadline for bringing an “action instituted under this paragraph”
(emphasis added)); Vaupel, 244 F. App’x at 895 (noting that the district court had issued
findings on the petitioner’s habeas claim under § 1252(e)(2) and separately applying the §
1252(e)(3)(B) deadline to the petitioner’s constitutional challenge to the expedited removal
procedures). It is of no moment, however. Even assuming the Court may review Grounds

One and Three in this habeas corpus proceeding, and further assuming that the Court finds
in the affirmative that Petitioner “is an alien”2 who “was ordered removed” under §
1225(b)(1), 8 U.S.C. § 1252(e)(2)(A), (B), Petitioner cannot plausibly “prove by a
preponderance of the evidence” that he is “lawfully admitted for permanent residence” as
required for further review of his claims. Id. § 1252(e)(2)(C); see id. § 1252(e)(4)(B).

Petitioner argues that he “qualifies as a lawful permanent resident” because: (1) he
is a “registered North American Indian”; (2) “a finder of fact reasonably can conclude that

2 “The term ‘alien’ means any person not a citizen or national of the United States.” 8
U.S.C. § 1101(a)(3).
he is at least 50 per centum of blood of the American Indian race”; and (3) pursuant to
federal statute and regulation, an American Indian born in Canada “who possess[es] at least
50 per centum of blood of the American Indian race” is permitted free passage across the

border and is “regarded as a lawful permanent resident of the United States.” Pet. at 3;
Pet’r’s Br. at 10 (citing 8 C.F.R. § 289.2); 8 U.S.C. § 1359.
Petitioner’s arguments are unavailing. The Court is limited by statute to
determining whether Petitioner can prove that he “is an alien lawfully admitted for
permanent residence.” 8 U.S.C. § 1252(e)(2)(C). “The term ‘lawfully admitted for

permanent residence’ means the status of having been lawfully accorded the privilege of
residing permanently in the United States as an immigrant in accordance with the
immigration laws.” Id. § 1101(20). Regardless of whether Petitioner could be admitted
for permanent residence based upon his American Indian descent,3 Petitioner does not
allege (and there is nothing in the record to suggest) that he “ha[s] been” accorded this

privilege by any court or administrative body. Id. The Court therefore cannot find that
Petitioner “is . . . lawfully admitted for permanent residence,” or “is legally entitled to be
present in the United States,” and so further review of these habeas claims is precluded.
Id. § 1252(e)(2)(C); Barajas-Alvarado, 655 F.3d at 1085.

3 The Court notes that the Northern District of New York considered the same documents
presented herein and found that they failed to establish Petitioner’s American Indian blood
quantum or his qualification for legal status under 8 U.S.C. § 1359. See United States v.
Malachowski, No. 1:09-CR-125, 2016 WL 8505084, at *2-3 (N.D.N.Y. June 24, 2016).
Because it “plainly appears” that Petitioner is not entitled to relief, the undersigned
agrees that Grounds One and Three must be dismissed. R. 4, R. Governing § 2254 Cases
in U.S. Dist. Cts.; see also id. R. 1(b).

C. Petitioner’s Third and Fifth Objections
Petitioner’s third and fifth objections are difficult to parse but appear to challenge
the Magistrate Judge’s characterization of Ground Four as a claim of ineffective assistance
of counsel (“IAC”) regarding Petitioner’s December 2009 criminal conviction in the
Northern District of New York. See Pet’r’s Obj. at 6-8, 11-13.

The Magistrate Judge accurately summarized Petitioner’s claim. See Pet’r’s Br. at
11-12 (citing Strickland, 466 U.S. 668 (1984), and alleging that Petitioner received
ineffective assistance in violation of the Sixth Amendment “in defense of criminal charges
relevant to (08-CR-701(DNH)).” To the extent Petitioner now seeks relief based on
ineffective representation by an attorney in his administrative immigration proceedings,

see Pet’r’s Obj. at 6-7, 11, such argument is waived. See Garfinkle, 261 F.3d at 1031.
Further, there is no right to counsel under the Sixth Amendment in an immigration hearing.
Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004); see also Garcia Uranga v.
Barr, No. 20-3162, 2020 WL 4334999, at *6 (D. Kan. July 28, 2020).
Petitioner’s fifth objection additionally disputes the Magistrate Judge’s

determination that Petitioner has failed to show that the remedy provided by 28 U.S.C. §
2255 is “inadequate or ineffective,” such that Petitioner should be permitted to raise his
Ground Four IAC claim to this Court via a § 2241 petition. See Pet’r’s Obj. at 12-13; R.
& R. at 6-7. Having considered Petitioner’s arguments, the Court agrees with the
Magistrate Judge that § 2241 is not available to Petitioner. Petitioner does not dispute that
the Ground Four IAC claim is properly the subject of a motion under 28 U.S.C. § 2255,
and his vague criticisms of the R. & R. do not establish that the Court should “liberally

impl[y]” either the inadequacy of the § 2255 remedy or the existence of new evidence, as
Petitioner suggests. Pet’r’s Obj. at 12. The Court therefore lacks jurisdiction over Ground
Four. See Abernathy v. Wandes, 713 F.3d 538, 557 (10th Cir. 2013) (“[W]hen a federal
petitioner fails to establish that he has satisfied § 2255(e)’s savings clause test—thus,
precluding him from proceeding under § 2241—the court lacks statutory jurisdiction to

hear his habeas claims.”). The Court further agrees that dismissal rather than transfer of
this unauthorized claim is proper. See R. & R. at 7-9 (citing In re Cline, 531 F.3d 1249,
1252 (10th Cir. 2008)).
For the foregoing reasons, these objections are overruled.
D. Petitioner’s Fourth Objection

Petitioner asserts that the dismissal of Grounds One and Three as untimely filed
would be inequitable and would not comport with the due process that is contemplated by
federal habeas corpus doctrine. See Pet’r’s Obj. at 8-11.
This objection is largely moot, given that the Court is dismissing these Grounds
based not on their untimeliness but upon their failure to state a plausible claim for relief.

Moreover, “the Supreme Court has . . . decided that the statutory limitations on review of
decisions in expedited-review proceedings do not deny due process to aliens.” Macias-
Guerrero, 817 F. App’x at 662 (citing Dep’t of Homeland Sec. v. Thuraissigiam, 140 S.
Ct. 1959, 1982 (2020) (“Whatever the procedure authorized by Congress is, it is due
process as far as an alien denied entry is concerned.” (internal quotation marks omitted))).
E. Petitioner’s Sixth Objection

Along with the Petition, Petitioner filed a Motion to Supplement and Expedite
Proceedings, asserting that he is particularly vulnerable to COVID-19 and citing this
vulnerability as an “extraordinary and compelling reason” for the Court to reach the merits
of his claims and issue relief. Pet’r’s Mot. (Doc. No. 8) at 3. The Magistrate Judge noted
that the Motion “raise[d] no additional substantive grounds for relief” and recommended

that to the extent the Motion was seeking “sentence modification/compassionate release,”
it should be denied. R. & R. at 9 (internal quotation marks omitted).
In his Objection, Petitioner clarifies that, despite his express reliance upon that
statute, he is not seeking sentence modification under 18 U.S.C. § 3582 at this time. Rather,
Petitioner’s Motion was seeking expedited resolution of his habeas claims based upon the

additional dangers presented by COVID-19. See Pet’r’s Obj. at 13-14.
In light of the instant disposition of the Petition, the Motion is moot and shall be
denied on that basis.
CONCLUSION
For the reasons outlined herein, the Court ADOPTS the recommended disposition

of the Report and Recommendation issued September 10, 2020 (Doc. No. 9) as modified
herein. Specifically:
(1) Grounds One, Two, and Three of the Petition for Writ of Habeas Corpus Under 28
U.S.C. § 2241 (Doc. No. 1) are DISMISSED pursuant to Rules 1(b) and 4 of the
Rules Governing Section 2254 Cases in the United States District Courts;
(2) Ground Four, construed as an unauthorized second or successive motion under 28
U.S.C. § 2255, is DISMISSED; and
(3) Petitioner’s Motion to Supplement and Expedite Proceedings (Doc. No. 8) is
DENIED AS MOOT.
Pursuant to 28 U.S.C. § 2253(c)(1)(B), a certificate of appealability (“COA”) must
issue for an appeal to be taken from a final order in a proceeding under 28 U.S.C. § 2255.
A COA may issue only upon “a substantial showing of the denial of a constitutional right.”
See 28 U.S.C. § 2253(c)(2). “When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a COA should
issue when the prisoner shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its procedural
ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Upon review, the Court finds that the requisite standard is not met in this case. A
certificate of appealability is DENIED. A separate judgment shall issue.
IT IS SO ORDERED this 27th day of September, 2021.

(Barba B. Kadota
United States District Judge

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10389149. Public record. Not legal advice.