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Ortiz-Orona v. Hogsten

January 7, 2008


The opinion of the court was delivered by: Judge Muir

Petition filed 10/15/2007



On October 15, 2007, Petitioner, Humberto Alonso OrtizOrona ("Ortiz-Orona"), an inmate at the Federal Correctional Institution at Allenwood, White Deer, Pennsylvania ("FCIAllenwood"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Ortiz-Orona paid the required filing fee. Ortiz-Orona claims that he is a United States citizen and that he was wrongfully prosecuted and convicted of illegal re-entry into the United States. Ortiz-Orona states in relevant part, including spelling and grammatical errors, as follows:

On July 6, 1998, Ortiz-Orona pled guilty to one count of second degree possession of a controlled substance (marijuana) before a Luna County Superior Court Judge in Demming, New Mexico. He received time served after serving only three (3) months in the Luna County Jail. Upon completion of said term, the Immigration and Naturalization Service("INS"), immediately initiated removal proceedings against petitioner. The INS claimed that Ortiz-Orono, a a non-citizen-- was removable under section § 237 of the Immigration and Nationality Act ("INA"), because he had been convicted of a controlled substance violation. An Immigration Judge "Ordered" Ortiz-Orona "removed".

After petitioner accepted guilty plea; Mr. Gary Hills, counsel representing petitioner at the time of original proceedings, erroneously advised Ortiz-Orona to waive his right to challenge Order of Removal before the Immigration Board of Appeals ("BIA"). Subsequent to entry of the judge's order, petitioner was released from the Luna County Jail, then taken into Bureau of Immigration and Customs Enforcement ("ICE") custody. Petitioner was then lodged in an immigration detention center in Columbus, New Mexico. Afterward, Ortiz-Orona was taken to the Mexican border and removed from the United States. However, on the very next day, Ortiz-Orona returned back to the United States to attend to the important matters relevant to his immediate family.

On or about February 10, 2001, Ortiz-Orona was arrested in Grand Junction, Colorado, and was charged with "illegal re-entry" and later sentenced pursuant to a plea agreement imposing a federal custodial term of imprisonment of fourty one (41) months. After completion of said term, petitioner was served with his original "Notice of Intent/Decision Reinstating Prior Order of Deportation." Subsequently, petitioner was again deported back to Mexico.

On or about February 14, 200[4], Ortiz-Orona returned back to the United States and was later charged, convicted, and sentenced, in the United States District Court for the District of Colorado pursuant to a guilty plea where he received a custodial term of imprisonment of fifty six (56) months.

On March 7, 2007, Immigration and Naturalization Service (INS) officials served Ortiz-Orona with the original "Notice of Intent/Decision to Reinstate Prior Order of Deportation", seeking to deport Ortiz-Orona for being removable as an illegal alien.

The original order is currently pending execution while petitioner serves remainder of his sentence for "illegal re-entry" into the United States.

Doc. 5, Brief in Support of Petition, pages 4-6. Ortiz-Orona is currently serving the 56 month sentence at FCI-Allenwood. OrtizOrona claims that he was born in Mexico on October 29, 1965, and that his biological father, Humberto Carbajal Orona, died in 1970.

He contends that his mother, Maria Ellen Barragan Orona, immigrated to the United States in 1972 and was admitted to this country as a lawful permanent resident. Ortiz-Orona claims that after his mother settled in this country she married Juan Augustin Ortiz, a citizen of the United States by birth. Attached to the petition is what purports to be a copy of Juan Augustin Ortiz's birth certificate. That birth certificate issued by the State of New Mexico, Bureau of Public Health, indicates that Juan Augustin Ortiz was born on April 14, 1933, at Cebolla, New Mexico. Ortiz-Orona's mother allegedly then returned to Mexico and brought Ortiz-Orona, who was eight years old, to the United States. It is alleged that at the point of entry into the United States, Ortiz-Orona and his mother were inspected and legally admitted into this country. Ortiz-Orona finally claims that he became a United States citizen on August 28, 1980, at the age of 14 when he was lawfully adopted by Juan Augustin Ortiz. Attached to the Petition is a copy of a Final Decree of Adoption issued by a Colorado state court on August 28, 1980.

The case was assigned to us but referred to Magistrate Judge Thomas M. Blewitt for preliminary consideration. On November 11, 2007, Magistrate Judge Blewitt filed a report recommending that pursuant to the Real ID Act of 2005 the case should be dismissed because this court lacks jurisdiction.

Objections to the report of a Magistrate Judge may be filed within 10 days after the report is served on the parties. M.D.Pa. Local Rule 72.31. The rule also requires that a brief in support be filed at the same time that the objections are filed. Although Ortiz-Orona has filed objections to the report of Magistrate Judge ...

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