The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KOLAWOLE MONDAY ONENESE, )
)
Petitioner, )
)
v. ) Case No.: 4:19-cv-01643-KOB-JHE
)
WILLIAM BARR, )
)
Respondent. )
MEMORANDUM OPINION
This matter comes before the court on the Respondent’s motion to consolidate, or, in the
alternative, to dismiss Petitioner Kolawole Monday Onenese’s filing, which has been construed as
a 28 U.S.C. § 2241 petition for a writ of habeas corpus. (Doc. 7, doc. 1). The magistrate judge
filed a report on December 17, 2019, recommending that the court grant the Respondent’s motion
and dismiss the petition as duplicative. (Doc. 8). The Respondent filed objections to the magistrate
judge’s report and recommendation. (Doc. 16).
Because this case has a relatively complicated history, some background information
provides helpful context. In March of 2019, prior to filing the instant action, the Petitioner filed
in this court a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his
continued detention by immigration authorities and demanding his release on an order of
supervision. (See Onenese Kolawole Monday v. Barr, No. 4:19-cv-0365-LSC-TMP, doc. 1 (N.D.
Ala.) (citing 8 U.S.C. § 1231(a)(6); Zadvydas v. Davis, 533 U.S. 678 (2001))). In his § 2241
petition, the Petitioner argued that he was being unlawfully detained because the time for removal
following the entry of a final removal order against him had elapsed. In that petition, the Petitioner
detailed an occasion on January 9, 2019, in which he resisted ICE’s attempt to force him to board
a plane to deport him to his home country of Nigeria.
The government filed a response in that case, arguing that the Petitioner’s continued
detention resulted from his obstruction of the removal process. (Onenese Kolawole Monday v.
Barr, No. 4:19-cv-0365-LSC-TMP, doc. 3). The response stated that the Petitioner would remain
in noncompliance with ICE, and thus in obstruction of his removal process, as long as he continued
trying to thwart ICE’s removal efforts. The Petitioner filed a reply, arguing, in part, that he was
not actually noncompliant with ICE’s invalid attempts to deport him. (Id., doc. 14, doc. 16). That
case remains pending in front of Judge Coogler.
On October 8, 2019, the Petitioner filed this action, which he titled “Petition for A Writ of
Mandamus.” (Doc. 1). In his filing, the Petitioner alleges that ICE has abused its discretion by
issuing repetitive notices of failure to comply with removal efforts, based in part on the January 9,
2019, incident. (Doc. 1 at 3, 6) (citing to 8 C.F.R. § 241.1(g)). The Petitioner requests that the
court require ICE to cease issuing “cumulative, non-prohibitive, and monotonous notice[s] of
failure to comply.” (Doc. 1 at 5). He argues that ICE only issues the notices to gain an unfair
advantage in his pending § 2241 case. He further asserts that ICE’s actions are undermining his
ability to be released on parole and states that the court should compel ICE to exercise its discretion
and release him from custody.
After the magistrate judge entered an order to show cause, the Respondent filed a motion
to consolidate this case with the case pending in front of Judge Coogler, treating both cases as
§ 2241 petitions addressing the same facts. (Doc. 7). Alternatively, the Respondent requested that
the instant case be dismissed as duplicative of the Petitioner’s prior action pending in front of
Judge Coogler.
The magistrate judge entered a report, construing the Petitioner’s filing as a § 2241 petition
and recommending that the case be dismissed as duplicative. (Doc. 8). The report focuses in large
part on the fact that both filings seek release from federal custody.
The Petitioner filed objections to the report and recommendation, arguing that his filing in
the instant case is different from his other pending action because this action merely seeks to
prevent ICE from serving notices of failure to comply with removal efforts. (Doc. 16). However,
even the Petitioner admits that the two actions are “overlapping” and that the “center piece of
Respondent’s petition to Petitioner’s petition for writ of habeas corpus was the unsubstantiated
allegation of failure to comply.” (Id. at 2). He argues, however, that his instant filing is narrower
in scope than his pending § 2241 petition. He also asserts that the “major prayer” for relief of his
self-described mandamus petition is “to stop the abuse of discretion by ICE in his appraisal system
which is based on compulsive issuance of notice of failure.” (Id. at 6).
The court OVERRULES the Petitioner’s objections. “The common-law writ of
mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if
he has exhausted all other avenues of relief and only if the defendant owes him a clear
nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). The Petitioner cannot meet
either requirement to justify this extraordinary remedy. First, he clearly has not exhausted all other
avenues of relief because his admittedly overlapping § 2241 petition remains pending. Resolution
of that petition in accordance with Eleventh Circuit precedent will necessarily include examination
of his January 9, 2019, refusal to board the plane, his ongoing litigation, and the notices of failure
to comply with removal—the same issues the Petitioner raises in this action. Second, the Petitioner
does not allege that ICE owes him a clear nondiscretionary duty; in fact, he claims that ICE is
abusing its discretion. Therefore, especially considering that the Petitioner’s filing requests his
release from federal custody, the filing more closely resembles a § 2241 petition for a writ of
habeas corpus than a mandamus petition. Because the instant construed § 2241 petition deals with
facts encompassed by the § 2241 petition pending in front Judge Coogler, the court agrees with
the magistrate judge that the instant filing should be dismissed as duplicative.
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 hereby ADOPTS
the magistrate judge’s report and ACCEPTS the recommendation.
Accordingly, the court GRANTS the Respondent’s motion to dismiss and DISMISSES
this action as duplicative. To the extent Onenese wishes to amend his petition in Case No. 4:19-cv-
0365-LSC-GMB and/or submit additional documents in support of that petition, he must file a motion
in that case.
DONE and ORDERED this 13th day of March, 2020.
____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE