United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge.
before me are a Rule 60(b) Motion for Relief from
Judgment/Motion to Enforce (Doc. 16) and a Supplemental
Motion to Enforce Court's Prior Order (Doc. 23) both
filed by Petitioner Dwight George Mundle (“Mr.
Mundle” or “Petitioner”). For the reasons
that follow, the motions will be denied.
pertinent factual background, as set forth in my January 29,
2018 opinion granting in part and denying in part
Petitioner's Petition for Writ of Habeas Corpus pursuant
to 28 U.S.C. § 2241, is as follows:
Mr. Mundle, a native and citizen of Jamaica, last entered the
United States at New York, New York, on July 13, 2000, as a
non-immigrant visitor. Although Mr. Mundle claimed previous
entry to the United States on a student visa in 1999,
immigrations officials could not verify this claim. He has
never been a Lawful Permanent Resident of the United States.
[Immigration and Customs Enforcement (“ICE”)]
officials encountered Mr. Mundle at FCI-Allenwood while he
was serving a twenty-seven month sentence following a July
13, 2016 conviction in the United States District Court,
Southern District of New York, for transmitting a threat in
interstate commerce in violation of 18 U.S.C. § 875(c).
In addition to the conviction he was serving, Mr. Mundle had
compiled several other criminal convictions including
conspiracy to distribute and possess with intent to
distribute controlled substances (marijuana) and aiding and
abetting the discharge of a firearm. A 41 month term of
imprisonment was imposed by the United States District Court,
Southern District of New York.
On January 5, 2017, the same day Mr. Mundle was taken into
ICE custody, ICE officials issued a Notice of Intent to Issue
a Final Administrative Removal Order charging Mr. Mundle as
removable from the United States pursuant to Section
237(a)(2)(A)(iii) of the INA based on his conviction for an
aggravated felony as defined in Section 101(a)(43) of the
INA. On January 30, 2017, Mr. Mundle was served with a Final
Administrative Removal Order. In relevant part, the Order
I find that you are not a citizen or national of the United
States and that you are not lawfully admitted for permanent
residence. I further find that you have a final conviction
for an aggravated felony as defined in section
101(a)(43)(B) of the Immigration and Nationality Act (Act)
as amended, 8 U.S.C. 1101(a)(43)(B), and are ineligible for
any relief from removal that the Secretary of Homeland
Security, may grant in an exercise of discretion. I further
find that the administrative record established by clear,
convincing, and unequivocal evidence that you are deportable
as an alien convicted of an aggravated felon pursuant to
section 237(a)(2)(A)(iii) of the Act, 8 U.S.C.
1227(a)(2)(A)(iii) . . . I find you deportable as charged and
order that you be removed from the United States to Jamaica
or to any alternative country prescribed in section 241 of
On May 16, 2017, noting that Mr. Mundle was “IN
WITHHOLDING-ONLY PROCEEDINGS, ” an IJ denied
Petitioner's application for deferral of removal under
the Convention Against Torture. Petitioner appealed the
IJ's decision to the Board of Immigration Appeals (BIA).
On October 20, 2017, the BIA dismissed Petitioner's
On October 27, 2017, Mr. Mundle filed a Petition for Review
with the United States Court of Appeals for the Third Circuit
and requested a stay of his removal order. The same day the
Third Circuit Court of Appeals granted Mr. Mundle a temporary
stay of removal until the Court could “consider [Mr.
Mundle's] motion for a stay of removal.” . . .
(Doc. 14, 2-5 (internal citations and footnotes omitted)).
being taken into ICE custody, Petitioner filed a § 2241
petition on August 16, 2017. (See Doc. 1,
generally). On January 29, 2018, I granted the
petition insofar as Petitioner requested an individualized
bond hearing, but the petition was denied to the extent
Petitioner sought immediate release from detention.
(See Doc. 14, ¶¶ 1-2). In so doing, I
noted that Petitioner had been convicted of an aggravated
felony as defined by 8 U.S.C. § 1227(a)(2)(A)(iii), so
his pre-final order detention was governed by 8 U.S.C. §
1226(c). (See Doc. 13, 5). And, finding Petitioner
at that time had been subject to mandatory detention for over
a year, I concluded that Petitioner was entitled to an
individualized bond hearing before an Immigration Judge
(“IJ”) in accordance with Diop v.
ICE/Homeland Security, 656 F.3d 221, 233 (3d Cir. 2011).
(See id. at 7).
hearing was held before an IJ on February 8, 2018.
(See Doc. 18, Ex. “1”). The IJ denied
bond to Petitioner, explaining that “the fact that
[Petitioner] has already exhausted one level of appeals,
coupled with his outstanding order of removal, gives the
Court considerable pause regarding Respondent's
willingness to wait out the Third Circuit's ruling and
appear for any future proceedings.” (Id. at
then filed the instant Rule 60(b) motion/motion to enforce.
(See Doc. 16, generally). Specifically,
Petitioner contends that the IJ applied the incorrect
standard when determining that he was a flight risk. (See
id. at 2). As a result, Petitioner requests that I hold
a new bail hearing and ...