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Tetteh v. Ashcroft

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


May 18, 2007

SETH TETTEH, PETITIONER,
v.
JOHN ASHCROFT, RESPONDENT.

The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

On or about May 5, 2003, petitioner Seth Tetteh ("Tetteh") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his detention by the Immigration and Naturalization Service ("INS")*fn1 pending his removal from the United States of America pursuant to a Final Order of Removal entered June 18, 2002. See Petition (Docket No. 1). Tetteh does not contest the underlying removal order but rather asserts that because no country to date has been willing to accept him, there is "no significant likelihood of removal in the reasonably foreseeable future," Zadvydas v. Davis, 533 U.S. 678, 701 (2001). Consequently, Tetteh argues, he should be released pending deportation. Because Tetteh asserted a challenge to his administrative custody only, there is no stay of removal in place.

Respondent opposed Tetteh's application for relief, arguing that this Court does not have subject matter jurisdiction over the present case, that Tetteh's petition fails to state a claim upon which relief may be granted, and that Tetteh's continued detention is authorized by statute. See Respondent's Memorandum of Law ("Resp't Mem.") (Docket No. 5).

The parties have consented to disposition of this matter by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). See Docket No. 6. The case was transferred to the undersigned on December 11, 2006. See Docket No. 9.

On April 24, 2007, respondent filed a Notice of Motion to Dismiss and Affidavit (Docket No. 10) indicating that Tetteh was released from administrative detention pursuant to an Order of Supervision. See Exhibit A to Docket No. 10. Consequently, respondent argues, Tetteh's petition for a writ of habeas corpus has been rendered moot. See ¶6, Docket No. 10. Respondent therefore requests that Tetteh's petition be dismissed as the relief he requested has already been effected. See id.

As a preliminary matter, the Court must address the justiciability question. "'[A] case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.'" County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)); accord County of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000); New York City Employees' Retirement System v. Dole, 969 F.2d 1430, 1433 (2d Cir. 1992). The concern underlying the mootness doctrine is that "when the challenged conduct ceases such that '"there is no reasonable expectation that the wrong will be repeated,'" United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953), then it becomes impossible for the court to grant '"any effectual relief whatever" to [the] prevailing party,' Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895))." County of Erie v. Pap's A.M., 529 U.S. at 287. In such case, "any opinion as to the legality of the challenged action would be advisory." Id.

Here, by this habeas corpus petition, Tetteh seeks release from administrative detention by the I.N.S. The petition therefore became moot upon Tetteh's release from longer INS custody.

Accordingly, respondent's motion to dismiss the instant petition (Docket No. 10) on the basis that it is moot and no longer presents a "live" case or controversy is GRANTED. Tetteh's petition for a writ of habeas corpus is hereby DENIED DISMISSED. Furthermore, I decline to issue a certificate of appealability because Tetteh has not made a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), and appellate review is therefore not warranted.

IT IS SO ORDERED.

Buffalo, New York.


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