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Awala v. Sabol

June 10, 2010

GBEKE MICHAEL AWALA, PETITIONER
v.
MARY SABOL RESPONDENT
GBEKE MICHAEL AWALA, PETITIONER
v.
UNITED STATES ATTORNEY GENERAL, ET AL., RESPONDENTS



The opinion of the court was delivered by: Judge McClure

MEMORANDUM

Petitioner Gbeke Michael Awala, a detainee of the United States Immigration and Customs Enforcement ("ICE") Office, who is confined at the York County Prison in York, Pennsylvania, has filed multiple petitions for writ of habeas corpus under the provisions of 28 U.S.C. § 2241 in several courts. The two actions referenced above, which were initiated by nearly identical petitions, are the remaining actions in this Court and are disposed of below.

I. PROCEDURAL BACKGROUND

A. Awala v. Sabol, Civil No. 4:09-CV-2462

Awala filed the petition for writ of habeas corpus in the above action in this Court on December 17, 2009. Although the petition is not a model of clarity, Awala appears, at least in part, to be challenging the lawfulness of his detention pending his removal from the United States to Nigeria, as evidenced by the fact that he filed a motion to order his immediate release (Rec. Doc. No. 6) after initiating the action. Accordingly, by Order dated February 17, 2010, we directed Respondent to answer the petition within twenty-one (21) days. (See Rec. Doc. No. 7.) On March 10, 2010, a response (Rec. Doc. No. 9) and supporting exhibits (Rec. Doc. No. 9-2) were filed. Awala filed a reply brief on March 16, 2010.*fn1 (Rec. Doc. No. 10.) Accordingly, the petition is fully briefed and ripe for review.

B. Awala v. Attorney General of the United States, et al., Civil No. 4:09-CV-2501

On December 18, 2009, one day after Awala's petition was filed at Civil No. 4:09-CV-2462, a second action filed by Awala was opened in this Court pursuant to a December 16, 2009 Order entered by the Clerk of Court for the Third Circuit Court of Appeals. (See Awala v. Attorney General of the United States, et al., Civil No. 4:09-CV-2501.) In initiating his action in the Third Circuit, Awala did not file an actual petition for writ of habeas corpus, but filed solely an application to proceed in forma pauperis in which he stated that he sought a writ of habeas corpus from the Court of Appeals. (See id., Rec. Doc. No. 1.) However, Awala did file a habeas petition in the action opened in this Court on December 17. Therefore, by Order dated January 5, 2010, the action that had been transferred from the Third Circuit was consolidated into the action that had been filed in this Court on December 17. (See Awala v. Sabol, Civil No. 4:09-CV-2462, Rec. Doc. No. 3.)

C. Awala v. Immigration Judge, et al., Civil No. 4:10-CV-0498 Awala v. United States Attorney General, et al., Civil No. 4:10-CV-0638

Awala also filed petitions in other courts that were identical or nearly identical to the petition that already was pending in this Court at Civil No. 4:09-CV-2462, and that were transferred to this Court because Awala is confined in this District. The first of these actions, Awala v. Immigration Judge, et al., Civil No. 4:10-CV-0498, was opened in this Court on March 4, 2010 pursuant to a January 27, 2010 Order entered by the United States District Court for the Middle District of Florida directing the transfer of the action. Because the petition transferred from the Middle District of Florida was identical to the petition in the instant action, the Clerk of Court was directed to close the case. (See Awala v. Immigration Judge, et al., Civil No. 4:10-CV-0498, Rec. Doc. No. 8.)

The second action is one of the remaining actions referenced in the caption above. This action was transferred to this Court and opened on March 23, 2010 pursuant to a March 16, 2010 Order entered by the United States District Court for the Southern District of New York. (See Awala v. United States Attorney General, et al., Civil No. 4:10-CV-0638.) Awala initiated his case in the Southern District of New York by filing a petition nearly identical to the petition that already was pending in this Court. (See id., Rec. Doc. No. 1.) The petition, which was dated December 30, 2009, and thus was prepared shortly after Awala filed his other remaining petition in this Court on December 17, is identical to the other remaining petition in its form and substance, but for the inclusion of additional argument. Because the arguments do not relate to the lawfulness of Awala's detention during removal proceedings, but rather challenge his removal itself, as observed in the Discussion section, infra, they are not properly raised through a habeas petition in any event. Accordingly, to the extent the petition challenges his detention pending removal, in light of our determination that the other remaining petition should be denied, we will deny the petition that was transferred here from the Southern District of New York as moot.

II. FACTUAL BACKGROUND

Awala is a native and citizen of Nigeria who originally entered the United States on an unknown date and at an unknown place. (See Rec. Doc. No. 9-2 at 3, Record of Deportable/Inadmissible Alien.) His criminal and arrest records date back to 1996 when Awala was arrested in Yonkers, New York, for the offense of Falsified/Altered Records. (See id. at 4.) On October 21, 1997, Awala was convicted in the United States District Court for the Southern District of New York for the offense of Conspiracy to Commit Bank, Mail, and Credit Fraud in violation of 18 U.S.C. § 371. (See id.) He was sentenced to a term of imprisonment of eighteen (18) months. (See id.)

On November 17, 1997, Awala was convicted in the New York State Superior Court Westchester County for the offense of Forgery (Second Degree) and Criminal Possession of a Forged Instrument. (See id.) He was sentenced to a term of imprisonment of one (1) to three (3) years. (See id.)

On June 16, 1999, ICE issued a Notice to Appear charging Awala with being deportable under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii), because he was convicted of an aggravated felony as defined in section 101(a)(43)(M) and (U), 8 U.S.C. § 1101(a)(43)(M) and (U). (See Rec. Doc. No. 9-2 at 7-9, Notice to Appear.) On September 20, 1999, an Immigration Judge entered an order directing that Awala be removed from the United States. (See id. ...


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