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Ambachew v. Mukasey

November 12, 2008

SHEGAW AMBACHEW, PETITIONER,
v.
MICHAEL MUKASEY, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE JUDGMENT PURSUANT TO RULES 59(e) and 60(b), FEDERAL RULES OF CIVIL PROCEDURE (Doc. 15) AND DIRECTING CLERK OF COURT TO SERVE COPY OF ORDER ON NINTH CIRCUIT

A. Procedural Background

On June 14, 2005, the United States Magistrate Judge recommended that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be denied without prejudice with respect to the portion of the petition requesting a stay of the final order of removal. Petitioner was advised that any objections to the recommendation be filed within 30 days of service of the Findings and Recommendation. (Doc. 6).

On June 21, 2005, Petitioner filed an amended petition for writ of habeas corpus. (Doc. 8). On June 27, 2005, Petitioner filed an "Amended Emergency Motion for a Stay Pending Judicial Review of Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C., Section 2241 Challenging Indefinite Post-Removal Detention." (Doc. 9). On July 7, 2005, an Order was filed dismissing the petition for writ of habeas corpus, denying Petitioner's motion for appointment of counsel, and denying Petitioner's Amended Emergency Motion. (Doc. 10). Judgment was entered on July 7, 2005. (Doc. 11). The July 7, 2005 Order dismissed the petition for writ of habeas corpus as recommended by the Magistrate Judge before the time to file objections to the recommendation had expired.

On July 8, 2005, Petitioner timely filed objections to the Findings and Recommendation. (Docs. 12 & 13).

On July 18, 2005, Petitioner filed an "Emergency Motion to Vacate and Set Aside Order and Judgment Pursuant to Rule 59(e) and Rule 60(b)(1)(2)(3)(4)(5)(6), FRCP; Motion to Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241; and Further Motion for Reconsideration." (Doc. 15).

Petitioner's July 18, 2005 motion was never resolved by the District Court.

On December 6, 2005, Petitioner filed a Notice of Appeal from the July 7, 2005 Order and Judgment. (Doc. 17) A Certificate of Appealability was denied on January 26, 2006. (Doc. 18).

On November 5, 2008, the Ninth Circuit issued an Order:

A review of the record demonstrates that, although the December 6, 2005 notice of appeal was not filed within 30 days from entry of the July 7, 2005 judgment, on July 18, 2005, appellant filed a timely motion for relief from judgment pursuant to Fed. R. App. P. 4(a)(4) [sic]. This district court has not ruled on that motion, which was terminated by the Clerk on March 17, 2008. Accordingly, this appeal is remanded to the district court for the limited purpose of allowing that court to rule on appellant's July 18, 2005 motion. The district court is requested to serve a copy of its decision on this court at its earliest convenience. Briefing is stayed pending further order of this court.

(Doc. 21).

B. Merits of Petitioner's July 18, 2005 Motion

1. Allegations of Amended Petition for Writ of Habeas Corpus

Petitioner's amended petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2241 alleges that Petitioner is a native and citizen of Ethiopia and that he is currently being detained at the Lerdo Pre-Trial Detention Facility in Bakersfield, California. On September 3, 1998, an Immigration Judge ordered Petitioner removed from the United States. Petitioner appealed the removal order to the Board of Immigration Appeals, which denied his appeal on December 3, 2002. Petitioner is now subject to a final order of removal. Petitioner entered ICE custody on March 16, ...


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