UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

LEROY SEARS, :

:

Petitioner : CIVIL NO. 4:CV-05-1471

:

v. :

:

: (Judge McClure)

KAREN HOGSTEN, :

:

Respondent :

________________________________________________________________

___

ORDER

August 16, 2005

Background

Leroy Sears (“Petitioner”) initiated this pro se petition for writ of habeas corpus

while confined at the Allenwood Low Security Correctional Institution, White Deer,

Pennsylvania (“LSCI-Allenwood”). Named as Respondent is the LSCI-Allenwood

Warden Karen Hogsten. The petition was not accompanied by either the required

filing fee or an in forma pauperis application. As a result, an Administrative Order was

issued on July 26, 2005 granting Sears thirty (30) days in which to either pay the

required filing fee or submit an in forma pauperis application. The Administrative

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Order forewarned Petitioner that failure to comply would result in dismissal of his

action without prejudice.

Sears states that he pled guilty to a charge of conspiracy to distribute

Methamphetamine in the United States District Court for the District of Nebraska. 

Petitioner adds that he has been in prison for 56 months and was scheduled to be

released from LSCI-Allenwood on July 22, 2005, the same day this petition was filed. 

Sears also provides a residential address in Lincoln, Nebraska as being his forwarding

address. 

The present action does not challenge the validity of Petitioner’s criminal

conviction nor the calculation of his resulting sentence. Rather, Sears claims that he is

going to be deported from this country to the United Kingdom by the Bureau of

Immigration and Customs Enforcement (BICE). His petition challenges the legality of

his removal on the basis that it would be contrary to international law.

Specifically, Sears asserts that his son, a United States citizen, has the right to

live with his father “in his own country, the U.S.” Record document no. 1, ¶ 4(a).

Petitioner argues that his proposed deportation is an “interference with family life” and

thus violates Article 17 of the International Covenant on Civil and Political Rights

(“ICCPR”) and Article 9 of provisions established by the United Nations’ Human

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Rights Committee. Id. at (b). His petition adds that his proposed deportation

constitutes an equal protection violation of the Fourteenth Amendment. As relief,

Petitioner seeks release on bond from his BICE detention or reentry into the United

States in the event that he has already been deported.

Discussion

Habeas corpus petitions brought under § 2241 are subject to summary dismissal

pursuant to Rule 4 ("Preliminary Consideration by the Judge") of the Rules Governing

Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254 (1977)

(applicable to § 2241 petitions under Rule 1(b)). See, e.g., Patton v. Fenton, 491 F.

Supp. 156, 158-59 (M.D. Pa. 1979). Rule 4 provides in pertinent part: "If it plainly

appears from the face of the petition and any exhibits annexed to it that the petitioner is

not entitled to relief in the district court, the judge shall make an order for its summary

dismissal and cause the petitioner to be notified." A petition may be dismissed without

review of an answer "when the petition is frivolous, or obviously lacking in merit, or

where . . . the necessary facts can be determined from the petition itself . . . ." Allen v.

Perini, 424 F.2d 134, 141 (6th Cir.), cert. denied, 400 U.S. 906 (1970). Accord Love

v. Butler, 952 F.2d 10, 15 (1st Cir. 1991). 

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1 The adjudicatory power of a federal court depends upon "the continuing

existence of a live and acute controversy." Steffel v. Thompson, 415 U.S. 452, 459

(1974) (emphasis in original). Since the Petitioner has already been deported, his

request to be released on bond during the pendency of his removal proceedings is

clearly moot.

4

Release on Bond

A copy of this Court’s July 26, 2006 Administrative Order which was sent to

LSCI-Allenwood was returned to this Court as undeliverable with a notation indicating

that Sears had been deported. Upon contacting the BICE, this Court confirmed that

Petitioner was deported to the United Kingdom on July 26, 2005.

Thus, Sears’ petition to the extent that it seeks his release on bond from BICE

detention is subject to dismissal on the basis of mootness.1

Challenge to Removal

“Section 106 of the REAL ID Act of 2005 amended section 242(a) of the INA

to provide that the sole and exclusive means to review an order of removal shall be by

petition for review in the applicable court of appeals. H.R. 1268, 109th Cong.

(2005)(enacted), Pub.L.No. 109-13, Div.B, 119 Stat. 231.” Doc. 20, pgs. 2-3. The

amendment became effective on May 11, 2005. 

Section 106(c) provides that “[i]f an alien's case, brought under section 2241 of

Title 28, United States Code, and challenging a final administrative order of removal,

deportation, or exclusion, is pending in a district court on the date of the enactment of

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this division, then the district court shall transfer the case (or the part of the case that

challenges the order of removal, deportation, or exclusion) to the court of appeals for

the circuit in which a petition for review could have been properly filed under section

242(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1252), as amended by this

section, or under section 309(c)(4)(D) of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (8 U.S.C. 1101 note). The court of appeals

shall treat the transferred case as if it had been filed pursuant to a petition for review

under section 242, except that subsection (b)(1) of such section shall not apply.” 

 Sears is clearly challenging a final administrative order of removal, therefore

under Section 106(c), the circuit court wherein the Immigration Judge presided over

the immigration proceedings and issued Petitioner's administrative removal order is the

only proper venue for his present claims. 

As previously noted, Sears has been deported and his current whereabouts are

unknown. He has failed to either pay the required filing fee or submit an in forma

pauperis application with respect to the filing of this petition. Furthermore, a review of

the record provides no clear indication as to the identity or location of the Immigration

Judge who issued the final administrative order of removal. Based on the above

circumstances, this matter will be dismissed without prejudice. The Petitioner may

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reassert his challenge to the final order of his removal before the appropriate Court of

Appeals. Consequently, 

IT IS HEREBY ORDERED THAT: 

1. The petition for writ of habeas corpus is dismissed without

prejudice.

 2. The Clerk of Court is directed to CLOSE this case.

 s/ James F. McClure, Jr. 

 JAMES F. MCCLURE, JR. 

United States District Judge 

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