The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
RICARDO HUGH BROWN, )
)
Petitioner, )
)
v. ) Case No.: 4:19-cv-00511-RDP-HNJ
)
DAVID RIVERA, et al., )
)
Respondents. )
AMENDED MEMORANDUM OPINION
On December 9, 2019, the Magistrate Judge entered a report recommending
this action be dismissed without prejudice. (Doc. 12). The Magistrate Judge further
recommended that Brown’s motion for evidentiary hearing be denied. (Id.).
On January 6, 2020, the court dismissed this action without prejudice. (Docs.
14, 15). The court noted improvidently that no objections had been received by the
court. (Doc. 14 at 1). However, the court received Petitioner Brown’s objections on
January 3, 2020.1 (Doc. 13). Accordingly, the court WITHDRAWS the
Memorandum Opinion and Order entered January 6, 2020. (Docs. 14, 15).
In his objections, Brown claims a New York criminal court is considering
vacating his convictions for the criminal sale of marijuana, convictions which the
1 Because Petitioner Brown is in custody, the court will deem the objections filed the date he
delivered them to custodial officials for mailing which appears to be December 22, 2019. (Doc.
13 at 3). See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001); Adams v. United
States, 173 F.3d 1339, 1341 (11th Cir. 1999).
immigration authorities used to initiate Brown’s Notice to Appear in Immigration
Court and the subsequent order of removal. (Doc. 13 at 1). He further states that
some of his other drug offenses have been expunged and his convictions for petit
larceny, resisting arrest, obtaining transportation without paying, and driving with a
suspended license do not support deportation. (Id.).
Brown does not address the magistrate judge’s findings that his claims are
premature under 8 U.S.C. § 1231(a)(1)(A) because he has filed petitions for review
and motions for stay of removal in the Second Circuit, and thus, he has a petition for
review currently pending. See Brown v. Barr, No. 19-2980 (2d Cir.). In the Eleventh
Circuit, a petitioner’s appeal of his removal order, accompanied by, or without, a
stay of removal, “interrupts” the presumptively reasonable, six-month removal
period arising under § 1231(a)(1)(A). And that operates to postpone a petitioner’s
access to the relief accorded by Zadvydas v. Davis, 533 U.S. 678 (2001). See
Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.4 (11th Cir. 2002). At the time Brown
filed the present petition, immigration authorities had not detained him beyond the
presumptively reasonable six months, as that time period is construed by Akinwale,
and thus, his petition is due to be dismissed without prejudice as premature. Id. at
1052. Therefore, the court OVERRULES Brown’s objections.
Having carefully reviewed and considered de novo all the materials in the
court file, including the report and recommendation, and the objections thereto, the
court ADOPTS the magistrate judge’s report and ACCEPTS his recommendation.
Accordingly, the petition is due to be dismissed without prejudice. In addition,
Brown’s motion for evidentiary hearing is due to be denied.
A separate order will be entered.
DONE and ORDERED this January 15, 2020.
UNITED STATES DISTRICT JUDGE