IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION

NATALIA NOVIKOVA, #A76-101-513, )

Petitioner, )

)

v. ) 3:06-CV-0039-M

)

NURIA PRENDES, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. §636(b), and an order of the District Court in

implementation thereof, the subject cause has been referred to the United States Magistrate

Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for habeas corpus relief filed by a detainee of the Bureau

of Immigration and Customs Enforcement (ICE) pursuant to 28 U.S.C. § 2241, et seq. 

Parties: At the time of filing this action, Petitioner was incarcerated at the Rolling Plains

Detention Center in Haskell, Texas. She was recently removed from the United States.

Respondent is the Field Office Director of the Dallas Detention and Removal Operations for

ICE. The Court issued process in this case.

Statement of Case: On January 6, 2006, Petitioner filed this habeas corpus action

challenging her detention pending removal to Russia pursuant to Zadvydas v. Davis, 533 U.S.

 

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1 It is undisputed that Petitioner is subject to a final order of removal issued by an

immigration judge. The numerous instances of ineffective assistance of counsel in the course of

the proceedings before the immigration court and Board of Immigration of Appeals, recounted in

details in the pleadings in this case, are beyond the scope of this habeas corpus petition.

2

678 (2001).1

 

On March 24, 2006, Petitioner submitted for filing an emergency motion seeking to stay

her removal, an issue not previously raised in her habeas petition. Petitioner asserted that ICE

had obtained a “Temporary Travel Document” from the Russian Consulate, and that it would

effect her removal in the near future. Petitioner mailed her emergency motion directly to the

Magistrate Judge’s office, which in turn received it on Friday March 24, 2006. Due to a clerical

error, the motion was not forwarded to the District Clerk’s Office for filing until Monday March

27, 2006. Moreover, since the motion did not contain a certificate of service, notice of its filing

was not served on the United State’s Attorney Office by electronic mail until Monday morning,

when the Clerk’s Office docketed the same. On March 28, 2006, the Magistrate Judge signed an

order granting a temporary stay of Petitioner’s removal for thirty days, and ordering Respondent

to file a response within three days. 

In its March 31, 2006 response in opposition to the emergency motion, Respondent

advises that on March 27, 2006, it removed Petitioner to Russia, thus rendering her petition

moot. (Response in Opposition at 2). Respondent further alleges that this court lacks

jurisdiction to enjoin Petitioner’s removal. On April 3, 2006, Petitioner’s husband filed a reply

contending that the petition is not moot because Petitioner was removed to life-threatening

 

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2 This is not the first pleading filed by Petitioner’s husband on behalf of Petitioner,

purportedly in violation of Rule 11, of the Federal Rules of Civil Procedure, which requires the

signature of the party proceeding pro se on each pleading, motion or other paper filed by that

party. 

Petitioner’s husband, however, may have intended to seek standing to proceed as next

friend on behalf of Petitioner. A petition for a writ of habeas corpus must be in writing, "signed

and verified by the person for whose relief it is intended or by someone acting in his behalf." 28

U.S.C. § 2242. In order to act on a prisoner's behalf, a putative next friend must demonstrate

that the prisoner is unable to prosecute the case on his own behalf due to "inaccessibility, mental

incompetence, or other disability," and that the next friend is "truly dedicated to the best interests

of the person on whose behalf he seeks to litigate." Whitmore v. Arkansas, 495 U.S. 149, 163-

64, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); see also In re Cockrum, 867 F.Supp. 494 (E.D. Tex.

1994). The putative next friend must clearly establish "the propriety of his status" in order to

"justify the jurisdiction of the court." Whitmore, 495 U.S. at 164. Standing to proceed as next

friend on behalf of a prisoner "is by no means granted automatically to whomever seeks to

pursue an action on behalf of another." Id. at 163. 

In light of Petitioner’s recent removal, the Court need not address this issue further.

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conditions in Russia, and that this court has jurisdiction to enjoin the removal.2

Findings and Conclusions: Petitioner's removal from the United States requires the Court

to examine whether it has jurisdiction over the instant action. See Fed. R. Civ. P. 12(h)(3)

(stating that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the action").

"Article III of the Constitution limits federal 'Judicial Power,' that is, federal-court

jurisdiction, to 'Cases' and 'Controversies.' " United States Parole Comm'n v. Geraghty, 445 U.S.

388, 395 (1980). A case becomes moot "when the issues presented are no longer 'live' or the

parties lack a legally cognizable interest in the outcome." Id. at 396 (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)). When a petitioner does not attack the validity of his

conviction, but merely contests the imposition and duration of his confinement, the case becomes

moot when he is no longer confined. Lane v. Williams, 455 U.S. 624, 631 (1982). "If a dispute

has been resolved or if it has evanesced because of changed circumstances, including the passage

 

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3 In her reply, Petitioner argues that “[t]he authority of Zadvydas v. Davis, 533

U.S. 678 (2001) has never been the sole basis for Petitioner’s habeas petition.” (Petitioner’s

Reply at 1). This Court disagrees. The petition specifically prayed as follows: “(1) assume

jurisdiction over this matter; (2) grant Petitioner a writ of habeas corpus directing the

Respondent to immediately release Petitioner from custody; (3) enter preliminary and permanent

injunctive relief enjoining Respondents from further unlawful detention of Petitioner; (4) award

Petitioner fees and costs . . ., and (5) grant any other and further relief that this Court deems just

and proper. (Original Petition filed Jan. 6, 2006, at 25).

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of time, it is considered moot." American Med. Ass'n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988).

The only relief sought in the habeas petition was release from custody pending removal. 

Since Petitioner was removed from the United States, her ground for relief is now moot and this

Court lacks jurisdiction to consider the habeas petition. See Omotoyo v. Chertoff, 3:05cv2093-P

(N.D. Tex., Dallas Div., March 27, 2006) (holding that the petitioner’s removal rendered moot

habeas corpus petition which sought release from custody pending removal under Zadvydas);

Habib v. Gonzales, 3:05cv2416-P (N.D. Tex., Dallas Div., March 27, 2006) (same).3

 

In her emergency motion, Petitioner seeks to enjoin her removal. Such a claim was not

pled in her original habeas petition as noted above. Even liberally construing the petition, in

accordance with her pro se status, to raise such a claim, the Court agrees with Respondent that 8

U.S.C. § 1252(g), as amended by the REAL ID Act of 2005, has divested this Court of

jurisdiction to enjoin the removal order. That section bars judicial review of claims arising out

of the “decision or action by the Attorney General to commence proceedings, adjudicate cases,

or execute removal orders . . . .”

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus

be dismissed for want of jurisdiction the same being moot.

A copy of this recommendation shall be transmitted to Petitioner and counsel for

Respondent.

Signed this 10th day of April, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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