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Marlon Gerardo Palmer v. Mary E. Sabol

July 21, 2011


The opinion of the court was delivered by: Hon. John E. Jones III



On February 15, 2011, Petitioner Marlon Gerardo Palmer ("Petitioner" or "Palmer"), a detainee of the United States Immigration and Customs Enforcement ("ICE") Office, who is confined at the York County Correctional Facility in York, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241. (Doc. 1). He challenges his continued detention by ICE and seeks his immediate release. For the reasons set forth below, we shall dismiss the Petition as premature.

Also pending before the Court are Palmer's Motion for Reconsideration of our February 16, 2011 Order to Show Cause and his Motion requesting that we stay these proceedings pending a decision by the United States Court of Appeals for the Third Circuit on his request for a panel rehearing following the denial of his petition for review and grant him an extension until thirty (30) days after the issuance of that decision to submit a reply brief in this matter. (Docs. 5, 11.) For the reasons explained below, the Motions will be denied.


Palmer is a national and citizen of Costa Rica. (Doc. 7-1, Ex. A, IJ Decision, at 2.*fn1 ) He originally entered the United States in 1967 as a lawful permanent resident. (Id.) On April 1, 1996, Palmer made a threatening phone call to a Pennsylvania judge who had incarcerated Palmer for failing to pay certain fines. (Doc. 13-1, 4/5/11 3d Cir. Op., at 3.) On February 5, 1997, Palmer was convicted by a jury sitting in the Berks County Court of Common Pleas for the offenses of retaliation for past official action, terroristic threats, and criminal harassment. (Id.; Doc. 7-2, Ex. B, Decision to Continue Detention, at 2.) Palmer was sentenced to a term of imprisonment of three (3) to twenty-three (23) months and six (6) years probation. (Doc. 7-2 at 2.) On December 17, 2002, Palmer was resentenced because of a probation violation to a term of imprisonment of one (1) to six (6) years, with a maximum release date of December 10, 2008. (Id.)

On June 20, 2008, while Palmer still was in state custody, ICE initiated removal proceedings by serving him with a Notice to Appear charging him with removability pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. (Doc. 7-1 at 2; Doc. 13-1 at 3.) On October 10, 2008, Palmer was released from state custody into ICE custody. (Doc. 7-2 at 2.)

In an Order dated March 11, 2009, an immigration judge explained his determination that Palmer was ineligible for a waiver of deportability under INA § 212(c) because he was incarcerated for at least five (5) years as a result of his terroristic threats conviction, and he therefore ordered Palmer removed from the United States to Costa Rica. (Doc. 7-1.) Palmer appealed to the Board of Immigration Appeals ("BIA") arguing that he was prejudiced as a result of his former counsel's ineffective assistance and also arguing that he was eligible for 212(c) relief because it was error to count the time he spent in jail for violating probation as time during which he was incarcerated for his terroristic threats conviction. (Doc. 7-3, Ex. C, 7/19/09 BIA Decision.) Palmer's appeal was dismissed by the BIA on July 19, 2009. (Id.)

On August 6, 2009, Palmer filed an Emergency Stay of Removal and Petition for Review with the United States Court of Appeals for the Third Circuit at Docket Number 09-3290. (Doc. 7-2 at 2.) By Order dated August 12, 2009, the Third Circuit granted Palmer a stay of removal. (Doc. 7-4, Ex. D, 8/12/09 Order.) On February 9, 2011, the Third Circuit submitted Palmer's petition for review to a panel for decision without oral argument. (Doc. 7-5, Ex. E, Copy of Third Cir. Docket #09-3290, at 5.)

On April 5, 2011, after a Response had been filed to the instant Petition, the Third Circuit denied Palmer's petition for review, but did not lift its stay of removal. (Doc. 13-1.) On April 25, 2011, Palmer filed a motion for reconsideration with the Third Circuit that was construed by the Court as a petition for panel rehearing. (Doc. 13-2, Third Circuit Docket #09-3290, at 6.) By Order dated April 27, 2011, the Third Circuit granted Palmer's motion to attach exhibits to his request for reconsideration and docketed his Petition for Panel Rehearing. (Id.)

Our review of the Third Circuit docket*fn2 as of the date of this Memorandum reveals the following additional developments:

On May 10, 2011, the Third Circuit denied Palmer's Petition for Panel Rehearing. However, on June 3, 2011, the Court vacated its May 10 Order and granted Palmer's emergency motion to amend his previous motion for reconsideration. The June 3 Order states that "[t]he Court will consider the Petitioner's document dated April 18, 2011 with exhibits, the document dated May 1, 2011, and the Motion dated May 13, 2011 when determining whether panel rehearing should be granted." In addition, while the Court's June 3 Order denied the "Motion by Petitioner to Stay or Continue Stay of Removal Pending Outcome of the Court of Appeals and U.S. Supreme Court for 60-Days of the Final Decision," the Court still did not lift its stay of removal. On June 16, 2011, Palmer filed a motion requesting leave to exceed the page limitation in his amended motion for reconsideration. This motion remains pending as of the date of this Memorandum.


On February 15, 2011, Palmer filed the instant Petition, which he indicated was "emergency" and "life threatening" in nature. (See Doc. 1 at 1.) Upon screening Palmer's Petition and attached exhibits, and performing independent research utilizing the Immigration Court Information System, provided by the Executive Office for Immigration Review ("EOIR") and PACER System, we learned that Palmer's removal from the United States had been stayed by the United States Court of Appeals for the Third Circuit and that the stay remained in place while his petition for review was awaiting decision in that Court. (See Doc. 4 at 2-3.) We therefore determined that, inasmuch as Palmer did not face immediate removal, his challenge to his continued detention does not warrant emergency relief. (See id. at 3.) Based upon our finding that emergency relief was not warranted, in directing ...

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