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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

GERVER FEDNER,

Agency No.: A-070-568-359,

Petitioner,

vs. Case No. 4:11cv190-MP/WCS

ERIC H. HOLDER, JR., et al.,

Respondents.

 /

REPORT AND RECOMMENDATION

Petitioner, who is pro se, initiated this action on May 3, 2011, by filing a petition

for emergency writ of habeas corpus pursuant to 28 U.S.C. § 2241, doc. 1, and

simultaneously paying the filing fee. The petition was reviewed and an order was

entered directing clarification from Petitioner. Doc. 4. Petitioner has responded with

that clarification which reveals this case was prematurely filed. Doc. 6. 

Petitioner alleges that he has been languishing in detention for six months in

violation of the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001). 

Doc. 2. This is not a challenge to the removal order, only that Petitioner is being held

indefinitely because it is "not significantly likely" that Petitioner will be removed "to Haiti

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his home country." Doc. 1, p. 3. Petitioner was "picked up by ICE" after he was

released from jail on December 28, 2010. Id., at 3; see also doc. 6. Having now

confirmed that date, Petitioner has not yet been in custody for six months prior to filing

this petition and it must be dismissed as premature.1 The six month period of time will

expire tomorrow, June 28, 2011, but this case was initiated on May 3rd, nearly two

months too soon.

The Supreme Court held that an alien's post-removal-period detention is limited

to "a period reasonably necessary to bring about that alien's removal from the United

States." Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 2498, 150 L.Ed.2d 653

(2001). For the "sake of uniform administration in the federal courts," the Court held

that six months is a presumptively reasonable period of time to detain an alien awaiting

removal. Id. at 701, 121 S.Ct. at 2505. "After this 6-month period, once the alien

provides good reason to believe that there is no significant likelihood of removal in the

reasonably foreseeable future, the Government" may be called on "to rebut that

showing." Id. at 701, 121 S.Ct. at 2505. If the petition fails to show prolonged detention

of at least six months, the petition may be dismissed. Akinwale v. Ashcroft, 287 F.3d

1050, 1052 (11th Cir. 2002) (holding that the "six-month period thus must have expired

at the time [the]§ 2241 petition was filed in order to state a claim under Zadvydas."). 

Here, as was the case in Akinwale, Petitioner had only been in detention for four

months when the petition was filed. This case must be dismissed as premature. 

 1 Petitioner states that the embassy of Haiti may not be issuing travel documents due

to the state of affairs in that country after the earthquake. Petitioner was ordered

removed to Haiti in absentia on October 7, 2009. Doc. 1, p. 4.

Case No. 4:11cv190-MP/WCS

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In light of the foregoing, it is respectfully RECOMMENDED that this § 2241

petition be DISMISSED without prejudice for failure to state a claim under Zadvydas as

Petitioner had not been in detention for more than six-months at the time of case

initiation.

IN CHAMBERS at Tallahassee, Florida, on June 28, 2011.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

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.

Case No. 4:11cv190-MP/WCS

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