Gomes v. Doll

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOSE CARLOS GOMES :

Petitioner : CIVIL ACTION NO. 3:20-505

v. : (MANNION, D.J.)

CLAIR DOLL, Warden of York :

County Prison,

:

Defendant

ORDER

Presently before the court is the report and recommendation (“Report”)

of Magistrate Judge Karoline Mehalchick, which recommends that Gomes’s

petition for a writ of habeas corpus be dismissed without prejudice. (Doc. 9).

Gomes has filed objections to the Report. (Doc. 10).

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge

and the court may rely on the recommendations of the magistrate judge to

the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing U.S. v. Raddatz, 447 U.S. 667, 676 (1980)).

Even where no objections are made to a report and recommendation,

the court should, as a matter of good practice, “satisfy itself that there is no

clear error on the face of the record in order to accept the recommendation.”

Fed.R.Civ.P.72(b), advisory committee notes; see also Univac Dental Co. v.

Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010) (citing Henderson v.

Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining judges should give

some review to every report and recommendation)). Nevertheless, whether

timely objections are made or not, the district court may accept, not accept,

or modify, in whole or in part, the findings or recommendations made by the

magistrate judge. 28 U.S.C. §636(b)(1); M.D.Pa. Local Rule 72.3.

In her Report, Judge Mehalchick notes that Gomes appealed his order

of removal and the denial of his applications for asylum, withholding removal,

and INA §240A(b)(1) cancellation on February 20, 2020, and subsequently

filed his instant petition on March 20, 2020. Significantly, however, because

the Board of Immigration Appeals (“BIA”) denied his appeal on June 5, 2020,

the Report observes that Gomes’s challenges to his pre-final order of

removal and corresponding detention are moot. As a result, Judge

Mehalchick recommends Gomes’s request for release or a bond hearing be

denied.

To the extent Gomes is challenging his final order of removal, the

Report observes that this court lacks jurisdiction to entertain his claims

pursuant to the Real ID Act. Jordan v. Attorney General, 424 F.3d 320, 327-

38 (3d Cir. 2005). The court has reviewed the pertinent filings and agrees

with Judge Mehalchick’s recommendations.

Gomes has filed objections to the Report, in which he argues that,

having been granted a stay of removal by the Third Circuit until it addresses

his petition for review of the BIA’s decision, “the basis of his custody reverted

to [§]1226.” (Doc. 10, at 2). As a result, Gomes asserts that his petition is not

moot and he should be granted a bail hearing.

The government acknowledges that, in light of the stay of removal, the

court should view Gomes as a pre-final order detainee pursuant to 8 U.S.C.

§1226(a). See Payano v. Lowe, No. 3:16-cv-2019, 2016 WL 6995433

(M.D.Pa. Nov. 30, 3016). However, it notes that how the court views

Gomes’s status and how his status is classified administratively differ and,

consequently, so does the amount of process he receives. To that end, the

government notes that DHS has and continues to view him as a post-final

order detainee pursuant to 8 U.S.C. §1231(a) and that, after six months when

his removal was not imminent, he was provided a bond hearing, where an

immigration judge found that Gomes was a danger and flight risk. See

Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir.

2018). Consequently, the government argues Gomes is not entitled to any

further habeas relief. The government is correct. Because Gomes has

already received the bond hearing that he seeks, he has received all due

process to which he is entitled. As such, the court will overrule the objections

and adopt the Report of Judge Mehalchick as the opinion of this court.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

(1) Gomes’s objections to the Report, (Doc. 10), are

OVERRULED;

(2) The Report of Judge Mehalchick, (Doc. 9), is

ADOPTED IN ITS ENTIRETY;

(3) Gomes’s petition, (Doc. 1), is DISMISSED WITHOUT

PREJUDICE; and

(4) The Clerk of Court is directed to CLOSE THIS CASE.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: April 15, 2021

20-505-01