UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALEN MILANKO, Case No. 1:18-cv-328

Petitioner,

Black, J.

vs. Bowman, M.J.

ATTORNEY GENERAL, et al. REPORT AND 

Respondents. RECOMMENDATION

This habeas corpus action brought pro se pursuant to 28 U.S.C. § 2241 is before the 

Court on respondents’ motion to dismiss (Doc. 8), to which petitioner has not responded. For the 

reasons stated below, it is recommended that the motion be granted. 

On May 14, 2018, petitioner filed a petition for habeas corpus challenging his continued 

detention by the United States Immigration and Customs Enforcement Agency (ICE) pursuant to 

a final order of removal. (See Doc. 1 at PageID 6). Petitioner claims he was taken into ICE 

custody on October 27, 2017. (See id.). Petitioner argues that his continued detention is 

unlawful because he has been detained for more than six months with no significant likelihood of 

his actual removal, in violation of Zadvydas v. Davis, 553 U.S. 678 (2001).

1

 In the petition, 

petitioner also claims violations of his due process rights. For relief, petitioner seeks immediate 

release from custody. (Doc. 1 at PageID 7). 

On July 26, 2018, respondents filed a motion to dismiss this action. (Doc. 8). According 

to respondents, petitioner has been released from ICE custody. In support of the motion, 

respondents include the Declaration of Timothy Hinman, a Deportation Officer employed by 

ICE, familiar with the immigration proceedings against petitioner. Hinman attests that petitioner 

 1 In Zadvydas, the Supreme Court held that indefinite detention of an alien who has been ordered removed was not 

authorized by 8 U.S.C. § 1231(a) and created a presumptive rule that after six months of custody an alien should be 

released if there is “good reason to believe there is no significant likelihood of removal in the reasonably foreseeable 

future.” Zadvydas, 533 U.S. at 701. 

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was released from ICE custody on July 25, 2018. (Doc. 8, Ex. 2, Hinman Decl. at PageID 42). 

In light of petitioner’s release from custody, respondents contend that the petition should be 

dismissed as moot. 

Respondents’ motion should be granted. Article III, § 2 of the United States Constitution 

limits the federal judicial power to the adjudication of cases and controversies. In the context of 

a habeas corpus petition, a district court generally lacks jurisdiction over the petition if the 

petitioner is not in government custody. Therefore, except in limited circumstances not 

applicable to the case-at-hand,2 a petitioner’s release from custody generally moots a habeas 

petition. See Lane v. Williams, 455 U.S. 624, 631–32 (1982). 

Petitioner does not challenge his removal order in this case. He instead contests his 

indefinite detention pending removal. (See Doc. 1). In these circumstances, petitioner’s July 25, 

2018 release pending removal renders this action moot and deprives the Court of jurisdiction. 

See Felix v. Bureau of Immigration and Customs Enforcement, No. 3:05-cv-2211, 2007 WL 

951452, at *1 (M.D. Pa. Mar. 27, 2007) (“When an alien subject to removal challenges only his 

detention pending removal, his release pending removal, whether or not conditional, entails no 

collateral consequences. It renders the petition moot because he has received all the relief he 

sought and would have been entitled to.”); see also Kahn v. Attorney General, Case Nos. 1:15-

cv-2014, 1:16-cv-85, at *2 (N.D. Ohio May 17, 2016) (“As Petitioner has received his requested 

relief by being released from custody on an order of supervision, there is no longer an active case 

or controversy.”) (Report and Recommendation), adopted, 2016 WL 4009885 (N.D. Ohio June 

25, 2016); Willix v. Holder, No. 1:11-cv-894, 2012 WL 463830, at *1 (W.D. Mich. Jan 24, 2012) 

(finding habeas petition moot where petitioner seeking release pending removal is released 

 2 Petitioner has not alleged nor is the undersigned aware of any basis to find that petitioner will suffer future 

collateral consequences as a result of the detention or that the case is “capable of repetition, yet evading review.” 

See Spencer v. Kemna, 523 U.S. 1, 7–8, 17–18 (1998).

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pursuant to an order of supervision) (Report and Recommendation), adopted, 2012 WL 463825 

(W.D. Mich. Feb. 13, 2012). Therefore, because petitioner has been released and has obtained 

the relief requested in the petition, the undersigned recommends that respondents’ motion to 

dismiss (Doc. 8) be GRANTED and the petition be dismissed as moot. 

In light of the above recommendation, petitioner’s motion for the appointment of counsel 

(Doc. 2) should be DENIED as moot. 

IT IS SO RECOMMENDED. 

 s/ Stephanie K. Bowman 

Stephanie K. Bowman 

United States Magistrate Judge 

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

ALEN MILANKO, Case No. 1:18-cv-328

Petitioner,

Black, J.

vs. Bowman, M.J.

ATTORNEY GENERAL, et al.

Respondents.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party's objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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