United States District Court, W.D. Washington, Seattle
ORDER RE: REPORT AND RECOMMENDATION
Barbara Jacobs Rothstein, U.S. District Court Judge
matter comes before the Court on the Report and
Recommendation (“R&R”) of Magistrate Judge
Brian A. Tsuchida. The R&R reflects a pre-service
screening of the habeas petition of prisoner Dilang Dat,
(“Petitioner”), and recommends dismissal without
prejudice. See 28 U.S.C. §1915A (mandating
early screening and dismissal of a prisoner complaint that
“is frivolous, malicious, or fails to state a claim
upon which relief may be granted”). Having reviewed the
R&R, Petitioner's objections thereto, and the
remainder of the record, the Court finds and rules as
following facts, alleged by Petitioner, are taken as true for
purposes of this order. Petitioner Dat is a legal permanent
resident of the U.S., having been admitted in September 1995
as a minor child, born in a Kenyan refugee camp, to parents
who had fled Sudan. Mem. in Supp. of Pet., Dkt. No. 3-2, at 1
(“Mem.”). In the summer of 2016, in the U.S.
District Court for the District of Nebraska, Petitioner
pleaded guilty to felony robbery and was sentenced to 78
months imprisonment to be followed by three years of
supervised release. Ex. To Pet., Dkt. Not. 3-1, p. 4
(“Ex.”). Petitioner challenged his conviction in
a 28 U.S. §2255 petition filed in the District of
Nebraska, claiming, among other things, ineffective
assistance of counsel. The district court summarily dismissed
Dat's §2255 petition. An Eighth Circuit panel
reversed the dismissal, finding a question of fact as to
whether Petitioner had been adequately advised of the adverse
effect of the guilty plea on his immigration status, and the
petition was remanded to the district court. See Dat v.
United States, 920 F.3d 1192 (8th Cir. 2019). The
district court conducted the prescribed evidentiary hearing,
and on October 24, 2019, the Hon. Laurie Smith Camp made the
required credibility determinations and dismissed the
petition a second time. See United States v. Dat,
No. 8:14CR409, 2019 WL 5538074 (D. Neb. Oct. 24, 2019). That
second dismissal is currently on appeal.
meantime, based on his felony conviction in Nebraska,
Petitioner became the subject of an “Immigration
Detainer-Notice of Action, ” dated July 20, 2018, (the
“Detainer”). See Ex., p. 14. The
Detainer notes that the Department of Homeland Security has
probable cause to believe that Petitioner is a removable
alien, and directs authorities at Leavenworth USP to notify
ICE before releasing Petitioner from custody. In January
2019, Petitioner was transferred from custody in Leavenworth,
Kansas to FDC Seatac. Ex., p. 4. In early 2019, Petitioner
made a request to FBOP for an award of Good Conduct Time and
early release to a halfway house, which request, he claims,
was denied as a result of the Detainer. Ex., p. 4.
Petitioner's request to ICE for cancelation of the
Detainer was also denied. Id.
in custody at FDC Seatac, Petitioner filed the instant 28
U.S.C. § 2241 petition in this Court on or about August
27, 2019, claiming violations of his Fifth Amendment Due
Process rights, among others. Dkt No. 3 (the
“Petition”). The Petition challenges the validity
of the Detainer, arguing it is improperly predicated on a
“conviction that has not become final for purposes of
removal” because Petitioner's appeal of the
dismissal of his §2255 action is pending in the Eighth
Circuit. Petitioner also complains that the Detainer is
having an adverse impact on the conditions of his
confinement, including denial of Earned Good Conduct Time,
access to pre-release programs, and early release. Pet.,
¶ 13. He argues that this impact violates his
constitutional rights. Among other things, Petitioner asks
this Court to order FBOP to award him the Earned Good Conduct
Time, which he claims is being wrongfully withheld based on
the Detainer; and to order ICE to cancel the Detainer until
“final conviction, warrant issued by immigration judge,
or final determination of removal or deportation.”
Pet., ¶ 15.
R&R of Magistrate Judge Tsuchida, in a pre-service
screening, recommends dismissal of Dat's Petition. It
states that this Court lacks jurisdiction to hear a challenge
to the Detainer. R&R at 1, citing Martinez v.
Mukasey, 263 Fed.Appx. 648, 649 (9th Cir. 2008),
Campos v. INS, 62 F.3d 311, 314 (9th Cir. 1995)
(“the bare detainer letter alone does not sufficiently
place [a non-citizen] in INS custody to make habeas corpus
available”)). The R&R also states that
Petitioner's challenge to the Detainer should be raised,
if at all, in the immigration courts or a petition for review
in the appropriate court of appeals. Id. at 2,
citing 8 U.S.C. § 1252(b)(9). Concluding that these
deficiencies could not be remedied by amendment, the R&R
recommends dismissal of the Petition without prejudice.
Petitioner filed a timely objection to the R&R. Dkt. No.
Standards of Review
district court has jurisdiction to review a magistrate
judge's report and recommendation on dispositive matters.
See Fed. R. Civ. P. 72(b). When a party files
objections to an R&R, the district court must review the
magistrate judge's findings de novo. United States v.
Raddatz, 447 U.S. 667, 673 (1980); Fed.R.Civ.P. 72(b).
The district court may accept, reject, or modify, in whole or
in part, the findings and recommendations made by the
magistrate judge. Raddatz, 447 U.S. at 673-74;
see also 28 U.S.C. § 636(b)(1).
survive scrutiny under 28 U.S.C. § 1915A, a complaint
must “contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Wilhelm v. Rotman, 680 F.3d 1113, 1121
(9th Cir. 2012), quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim is plausible “when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678. A complaint must contain more than a “formulaic
recitation of the elements of a cause of action;” it
must contain factual allegations sufficient to “raise a
right to relief above the speculative level.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). “The pleading must contain something more ...
than ... a statement of facts that merely creates a suspicion
[of] a legally cognizable right of action.”
“document filed pro se is to be liberally
construed, and a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (internal citations
omitted); see also Silva v. Di Vittorio, 658 F.3d
1090, 1101 (9th Cir.2011) (courts “may only dismiss a
pro se complaint for failure to state a claim if it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.”). Unless it is clear a pro se
plaintiff cannot cure the deficiencies of a complaint, the
Court will provide the pro se plaintiff with an
opportunity to amend the complaint to state a plausible
claim. See United States v. Corinthian Colleges, 655
F.3d 984, 995 (9th Cir. 2011) (“Dismissal without leave
to amend is improper unless it is clear, upon de novo review,
that the complaint could not be saved by any
Dat's Petition May State Claim on Which ...