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Dutton-Myrie v. Lowe

United States District Court, M.D. Pennsylvania

October 28, 2014

LUIS A. DUTTON-MYRIE, Petitioner,
v.
CRAIG LOWE, et al., Respondents.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

I. Introduction

Before the court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 by petitioner Luis A. Dutton-Myrie on August 12, 2013. (Doc. 1, Pet.) Mr. Dutton-Myrie, a native and citizen of Panama, contests his continued detention by Immigration and Customs Enforcement (ICE) of the Department of Homeland Security. He states that he has been detained by ICE since January 19, 2012 and seeks his release.

For the reasons set forth below, the Petition will be denied, however, ICE will be ordered to provide Mr. Dutton-Myrie with a Post-Order Custody Review if he has not yet had one in the past thirty days.

II. Background

Mr. Dutton-Myrie was admitted to the United States on January 11, 1991, as a non-immigrant visitor for pleasure with authorization to remain in the United States until July 10, 1991. (Doc. 14-1, ECF p. 7.) Mr. Dutton-Myrie did not leave the United States in July 1991.

Since then Mr. Dutton-Myrie accrued several criminal convictions, all within the York County Court of Common Pleas. In 1992 Mr. Dutton-Myrie pled guilty to possession with intent to deliver and possession of cocaine. ( Id., ECF pp. 32-35.) In 1994, after trying to escape from the York County Prison, he pled guilty to criminal attempt to commit escape and possessing weapons or implements for escape. ( Id., ECF pp. 25-29.) The same year Mr. Dutton-Myrie also pled guilty to two counts of unlawful delivery of a controlled substance (cocaine). ( Id., ECF pp. 36-46.)

On February 15, 1997, he was issued an order to show cause and notice of hearing notifying him that he was subject to deportation for the following reasons: (1) having remained in the United States for a time longer than permitted in violation of § 237(a)(1)(B) of the the Immigration and Nationality Act (INA), 8 U.S.C. § 1231; (2) being convicted of an aggravated felony following his entrance into the country (§ 237(a)(2)(A)(iii) of the INA); and (3) being convicted for an offense involving a controlled substance (§ 241(a)(2)(B)(i) of the INA). ( Id., ECF pp. 4-8.) On April 13, 1998, an Immigration Judge (IJ) ordered Mr. Dutton-Myrie removed from the United States on account of him overstaying his visa and because he was convicted of an aggravated felony. ( Id., ECF pp. 49-51.) Petitioner waived his appeal. ( Id., ECF p. 49.)

On May 15, 1998, ICE attempted to remove Mr. Dutton-Myrie by placing him on an airplane at the Newark International Airport bound for Panama. (Doc. 1, ¶ 18.) However, Mr. Dutton-Myrie "managed to avoid deportation by getting off the air bus undetected before departing and stayed in the U.S. illegally." ( Id. )

In August 2001, in the United States District Court for the Southern District of West Virginia, Mr. Dutton-Myrie pled guilty to making false statements in application for a United States passport. (Doc. 14-1, ECF p. 47.) On February 7, 2005, Mr. Dutton-Myrie was removed from the United States to Panama. ( Id., ECF p. 51.) A few days after his arrival in Panama, Mr. Dutton-Myrie claims he was stabbed in the neck by members of the street gang MS-13. (Doc. 1, ¶ 20.)

On November 7, 2007, he was arrested in the United States District Court for the Middle District of Pennsylvania and charged with violating 8 U.S.C. §§ 1326(a) and (b)(2), illegal re-entry by a previously deported alien convicted of an aggravated felony. (Doc. 14-1, ECF pp. 52-54.) In 2011, after pleading guilty to this charge, Mr. Dutton-Myrie was sentenced by this court to a term of forty-four months and twenty-five days' imprisonment. See USA v. Dutton-Myrie, 3:07-CR-00445 (M.D. Pa.).

Mr. Dutton-Myrie was also arrested in 2007 for several counts of manufacture/delivery/possession with intent to manufacture or deliver a controlled substance in the Court of Common Pleas of Cameron County. ( Id., ECF pp. 9-24.) In 2010, Mr. Dutton-Myrie pled guilty to one count of manufacture/delivery/possession of a controlled substance while the other counts were nolle prossed. ( Id. )

On February 6, 2011, while Mr. Dutton-Myrie remained in custody of the Federal Bureau of Prisons (BOP), an IJ denied his request to reopen of his immigration proceedings and a stay of removal. ( Id., ECF pp. 57-58.)

On January 19, 2012, Mr. Dutton-Myrie was released from the BOP to the custody of ICE. (Doc. 1, ¶ 23.) On February 15, 2012, Mr. Dutton-Myrie was served with a Notice of Intent/Decision to Reinstate Prior Order, notifying him that he was subject to removal pursuant to Section 241(a)(5) of the INA which reinstates a prior removal order when an alien illegally reenters the United States. ( Id., ECF p. 60.) Shortly ...


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