IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

FRANKLIN FATUSIN,

Petitioner,

vs. Case No. 4:11cv163-MP/CAS

ERIC H. HOLDER, et al.,

Respondents.

 /

THIRD REPORT AND RECOMMENDATION

An evidentiary hearing was held in this case on February 28, 2012. Doc. 31. 

Following the hearing, a second report and recommendation was entered

recommending that Petitioner's pro se amended § 2241 petition for writ of habeas

corpus, doc. 12, be denied. Doc. 32. That recommendation was entered because the

evidence in the hearing established that travel documents had previously been issued

for Petitioner's return to Nigeria, but Petitioner would not comply with removal efforts. 

Doc. 32. Petitioner was shown the first page of the travel documents, but said he did

not want to be deported, he pulled away from the Immigration Officer who was at the jail

to escort Petitioner to his flight, and he made allegations to the Nigerian Consulate that

he has pending litigation so as to preclude issuance of another travel document. Id.

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The conclusion from that hearing was that Petitioner could have already been removed

and, hence, released from detention if he had cooperated in July 2011. Id. 

Petitioner has now filed a document which is entitled "Emergency Motion" on the

first page, and "Motion for Summary Judgment" on the second page. Doc. 40. 

Petitioner asserts that he is "incarcerated because of this case." Id. at 1. He states that

his prolonged detention "has been going on for too long." Id. at 2. Petitioner gives a

history of his case and presents argument about prolonged detention. What Petitioner

does not do, however, is admit his prior refusal to comply with immigration officials in

the past, acknowledge that his continued detention is due to his own actions, or indicate

any change in conduct or attitude that would warrant vacating the second report and

recommendation, doc. 32, which is still pending. 

Petitioner's instant motion, doc. 40, fails to show that his petition should be

granted and he should be released from detention because he is unable to demonstrate

that his removal is not significantly likely to occur when Petitioner is willing to cooperate

in his removal. In Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653

(2001), the Supreme Court established a presumptive period of removal, but it does not

require that detainees be released from detention after that period. Continued detention

is permissible under the Constitution and by statute. A removal period "shall be

extended . . . and the alien may remain in detention during such extended period if the

alien fails or refuses to make timely application in good faith for travel or other

documents necessary to the alien's departure or conspires or acts to prevent the alien's

removal subject to an order of removal." 8 U.S.C. § 1231(a)(1)(C). Petitioner's

extended period of detention is due to Petitioner's own actions in attempting to thwart

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his removal. He "cannot trigger [a constitutional right to be free from indefinite detention

by the INS] with his outright refusal to cooperate with INS officials." Sango-Dema v.

District Director, I.N.S., 122 F.Supp.2d 213, 221 (D. Mass. 2000). The removal period

has been tolled as permitted by 8 U.S.C. § 1231(a)(1)(C) because of Petitioner's

conduct, this § 2241 petition should be denied, the motion for summary judgment, doc.

40, should be denied, and Respondents are entitled to continue Petitioner's detention

pursuant to 8 U.S.C. § 1231(a)(1). 

Accordingly, it is RECOMMENDED that the emergency motion for summary

judgment, doc. 40, be DENIED, and that the amended petition for writ of habeas corpus

filed pursuant to 28 U.S.C. § 2241 by Franklin Fatusin, doc. 12, be DENIED.

IN CHAMBERS at Tallahassee, Florida, on August 2, 2012.

 S/ Charles A. Stampelos 

CHARLES A. STAMPELOS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 14 days

after being served with a copy thereof. Failure to file specific objections limits the

scope of review of proposed factual findings and recommendations.

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