United States District Court, M.D. Pennsylvania
ORVILLE M. HUTTON, Petitioner
CRAIG LOWE, et al., Respondents
D. Mariani United States District Judge
Orville Hutton, a detainee of the United States Immigration
and Customs Enforcement (ICE"), currently confined in
the Pike County Correctional Facility, Lords Valley,
Pennsylvania, filed the instant petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. (Doc. 1). Hutton
challenges his continued detention by ICE pending removal.
(Id.). He requests, inter alia, immediate
release or an individualized bond hearing. (Id. at
p. 26). For the reasons set forth below, the Court will grant
a writ of habeas corpus directing an Immigration Judge to
conduct a bond hearing to determine if Hutton is a flight
risk or danger to the community.
a native and citizen of Jamaica, became a lawful permanent
resident of the United States on October 31, 1972. (Doc. 1;
Doc. 5-3, p. 2).
2010, a West Virginia grand jury indicted Hutton on four
counts of malicious assault and sexual assault. (Doc. 5-4,
pp. 2-3, Indictment). On May 21, 2010, Hutton was convicted
in the Harrison County Circuit Court of the felony offense of
unlawful assault. (Doc. 5-4, p. 7). On July 6, 2010, Hutton
was sentenced to a one to five year term of imprisonment.
(Doc. 5-4, pp. 7, 12).
28, 2013, ICE served a Notice to Appear on Hutton indicating
that he was subject to removal pursuant to section
237(a)(2)(A)(iii) of the Immigration and Nationality Act
("INA") based on his conviction of a "crime of
violence" aggravated felony. (Doc. 5-3, pp. 2-4, Notice
to Appear). He was taken into ICE custody on or about May 28,
September 9, 2013, an Immigration Judge ordered Hutton to be
removed to Jamaica. (Doc. 5-6, pp. 2-10, Order of the
filed an appeal with the Board of Immigration Appeals
("BIA"). (Doc. 5-7, pp. 2-6, Decision of the Board
of Immigration Appeals). On February 28, 2014, the BIA
affirmed the Immigration Judge's decision and declined to
delay the case while Hutton sought post-conviction relief.
March 21, 2014, Hutton filed a petition for review of the
BIA's final order of removal with the United States Court
of Appeals for the Third Circuit. (Doc. 5-8, pp. 2-7,
Hutton v. Attorney General of the U.S., No. 14-1698
(3d Cir.). Hutton also filed a motion for a stay of his
removal. (Id.). The Attorney General opposed the
stay of removal and filed a motion to dismiss.
(Id.). On April 17, 2014, the Third Circuit granted
the stay of removal and referred the dispositive motion to a
merits panel. (Id.). On October 20, 2014, the Third
Circuit issued an order staying the petition for review
pending resolution of Hutton's appeal by the West
Virginia Court of Appeals. (Id.).
filed a petition for a writ of error coram nobis in the
Circuit Court of Harrison County in order to have his guilty
plea conviction for unlawful assault vacated on the grounds
of ineffective assistance of counsel. See State v.
Hutton, 235 W.Va. 724, 726 (2015). The Harrison County
Circuit Court denied his petition and Hutton appealed to the
Supreme Court of West Virginia. Id. On June 16,
2015, the Supreme Court of West Virginia issued a decision on
the question of whether a writ of error coram nobis existed
in the state. Id. The West Virginia Supreme Court
found that the writ existed and remanded the matter to the
Circuit Court of Harrison County. Id. at 743. The
matter remains pending in the Harrison County Circuit Court.
(Doc. 5-9, pp. 2- 3; Hutton v. Attorney General of the
U.S., No. 14-1698 (3d Cir.)).
Hutton's removal proceedings were final, the Third
Circuit entered an order staying his removal. Because Hutton
appealed to the Third Circuit, the final order was
essentially "revoked" and no final order has yet
been entered. See 8 U.S.C. § 1231(a)(1)(B)(ii)
("The removal period begins on the latest of the
following ... [i]f the removal order is judicially reviewed
and if a court orders a stay of the removal of the alien, the
date of the court's final order."); see also
Leslie v. Attorney General of U.S., 678 F.3d 265, 270
(3d Cir. 2012). Thus, Hutton is subject to pre-final order
detention, and the Court must determine whether he is
entitled to habeas relief in the nature of his release from
the Pike County Correctional Facility pending the outcome of
his immigration proceedings, or to order a bond hearing.
Respondent does not oppose Hutton's request for a bond
hearing, and asserts that the Court should order an
Immigration Judge to conduct an individualized bond hearing.
(Doc. 5, pp. 4-7).
Hutton's 2010 conviction, there was a clear legal basis
for ICE to detain him pending the outcome of removal
proceedings. See Diop v. ICE, 656 F.3d 221, 230 (3d
Cir. 2011). Pursuant to 8 U.S.C. § 1226(c), the Attorney
General must take into custody any alien who "is
deportable by reason of having committed any offense covered
in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of
this title." 8 U.S.C. § 1226(c)(1)(B). Prior to a
final removal order, an alien must be detained without being
afforded a bond hearing. 8 U.S.C. § 1226(c). However,
this "mandatory detention" provision has limits.
See Diop, 656 F.3d at 232. Although mandatory
detention for some classes of aliens under § 1226(c) is
constitutional, Justice Kennedy's concurring opinion in
Demore v. Kim, etal., 538 U.S. 510, 532 (2003),
helps inform the Diop Court's emphasis that
continued detention can become unconstitutional unless the
government justifies its actions at a hearing designed to
ascertain whether continued detention of the alien is
necessary to achieve the law's stated purposes of
preventing flight and minimizing potential dangers to the
community. Diop, 656 F.3d at 233. Where detention
has become unreasonable, "the Due Process Clause demands
a hearing, at which the Government bears the burden of
proving that continued detention is necessary to fulfill the
purposes of the detention statute." Id.
has now been detained by ICE for nearly four years. Although
the statutory law does seemingly dictate mandatory custody,
"[w]e do not believe that Congress intended to authorize
prolonged, unreasonable, detention without a bond
hearing." Hernandez v. Sabol, 823 F.Supp.2d
266, 272 (M.D. Pa. 2011). As stated supra, section
1226(c) authorizes detention for a reasonable amount of time,
after which the authorities must make an individualized
inquiry into whether detention is still necessary to fulfill
the statute's purposes of ensuring that an alien attends
removal proceedings and that his release will not pose a
danger to the community. See Diop, 656 F.3d at 231.
Given Hutton's nearly four year detention, the Court will
direct that Hutton be ...