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Rodney v. Mukasey

February 20, 2009

DEXTER RODNEY, PETITIONER
v.
MICHAEL MUKASEY, ATTORNEY GENERAL, ET AL., RESPONDENTS



The opinion of the court was delivered by: Muir United States District Judge

(Petition Filed 7/24/08)

(Judge Muir)

ORDER

Petitioner, a detainee of the Department of Homeland Security ("DHS"), currently confined in the Pike County Correctional Facility, Lords Valley, Pennsylvania, filed the above captioned petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Rodney challenges his continued detention by the DHS. Because petitioner's ninety day removal period has yet to commence, the petition will be dismissed as premature.

I. Background

Petitioner, a native and citizen of Guyana, entered the United States on or about February 27, 1996, as a lawful permanent resident alien. (Doc. 1, petition).

On February 11, 2004, following a jury trial, petitioner was convicted in the United States District Court for the Southern District of New York of bank fraud and theft of government property. (Doc. 10-4, Ex. 1, United States v. Rodney, 1:03-cr-0819-SWK-1, criminal docket sheet at p. 2).

On May 14, 2004 petitioner was sentenced to a concurrent five (5) month term of imprisonment and a three (3) year term of supervised release, which included a five (5) month term of home confinement. Id.

On March 21, 2005, the United States Court of Appeals for the Second Circuit affirmed petitioner's conviction, but remanded the case pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), because the district court "treated the federal Sentencing Guidelines as mandatory." (Doc. 10-6, Ex. 3, United States v. Rodney, 124 Fed.Appx. 67, 68 (2d Cir. 2005).

On April 14, 2005, petitioner's probation officer notified the district court that petitioner had violated the terms of his supervised release. (Doc. 10-4, Ex. 1, United States v. Rodney, 1:03-cr-0819-SWK-1, docket sheet at pp. 7-8).

On August 15, 2005, Rodney was resentenced in accordance with the remand from the Second Circuit. Id. at p. 10. In addition to his sentence, petitioner was found guilty of violating the terms of his supervised release and was sentenced to an additional year of supervised release, in addition to the term he was currently serving. Id. Rodney's term of supervised release was, therefore determined to expire on July 8, 2008, instead of July 8, 2007. Id.

On November 9, 2006, petitioner was sentenced to an eight month term of imprisonment for again violating the terms of his supervised release. Id. at p. 12. Petitioner surrendered on November 13, 2006, id., and his sentence expired on July 12, 2007.

In a Notice to Appear dated July 12, 2007, petitioner was charged with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(M)(i)*fn1 , at any time after admission. (Doc. 1). The Notice to Appear was based on petitioner's 2004 bank fraud conviction Id. That same day, DHS took Rodney into custody, pending a final determination of his case by the immigration judge. (Doc. 2, Ex. C, Notice of Custody Determination).

By Order dated November 6, 2007, an Immigration Judge found petitioner removable as charged. (Doc. 10-7, Oral Decision of Immigration Judge). On November 26, 2007, Petitioner filed a timely appeal to the ...


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