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Perez v. United States

United States District Court, Central District of California

November 4, 2014

ALBERTO NORIEGA PEREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent

Alberto Noriega Perez, Petitioner, Pro se, Los Angeles, CA.

United States of America, Respondent: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Diana L Pauli, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Criminal Division - U.S. Courthouse, Los Angeles, CA; Patricia E Bruckner, LEAD ATTORNEY, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOHN E. MCDERMOTT, UNITED STATES MAGISTRATE JUDGE.

The Court submits this Report and Recommendation to the Honorable Stephen V. Wilson, United States District Judge, pursuant to 28 U.S.C. Section 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

On November 25, 2013, pro se Petitioner Alberto Noriega Perez (" Noriega" or " Petitioner") filed a petition for habeas corpus (" Petition"). (Docket Nos. 1 & 2.) On January 13, 2014, Respondent filed a motion to dismiss the Petition. (Docket No. 8.)

On February 10, 2014, Noriega filed an " Amendment to Habeas Corpus Filing Under 28 U.S.C. § 2241" (" February 10 Filing"). (Docket No. 9.) Respondent construed the February 10 Filing as a First Amended Petition and filed a motion to dismiss the First Amended Petition on March 3, 2014.[1] (Docket No. 13.)

On April 2, 2014, the Court sua sponte extended the time for Noriega to file an opposition to Respondent's motion to dismiss the First Amended Petition from March 24, 2014, to April 16, 2014. (Docket No. 15.)

On April 3, 2014, Noriega filed an " Amendment to Writ of Error Habeas Corpus Filing Under 28 U.S.C. § 2241, 28 U.S.C. § 1651(a), Emergency Ex (sic) Party" (" April 3 Filing"). (Docket No. 16.) Respondent construed the April 3 Filing as a Second Amended Petition (" SAP") and filed a motion to dismiss the SAP on April 17, 2014 (" Motion"). (Docket No. 17.)

On April 17, 2014, Petitioner filed an " Answer to Government Opposition to Petitioners Writ of Error and Habeas Corpus Filing Under 28 U.S.C. § 2241 28 U.S.C. § 1651(a)" (" April 17 Filing"). The April 17 Filing, apparently Petitioner's opposition to Respondent's motion to dismiss the First Amended Petition, was stricken from the record on May 7, 2014, because it was rendered moot by the filing of the SAP (April 3 Filing) and Respondent's Motion to dismiss the SAP.[2] (Docket No. 19; see Docket Nos. 16-17.)

On May 15, 2014, Petitioner filed his Opposition to Respondent's Motion. (Docket No. 20.) Respondent did not file a Reply.

The Motion is ready for decision. For the reasons discussed below, the Court recommends that the SAP be dismissed, without prejudice, for lack of jurisdiction.[3]

BACKGROUND

According to Respondent, Noriega is a native and citizen of Mexico. Noriega first entered the United States on June 24, 1960. (See Motion, Exh. 1.) Noriega was convicted in the United States District Court for the Southern District of California on one count of conspiracy to bring illegal aliens to the United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 371), one count of conspiracy to harbor illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii), (v)(I)), eighteen counts of aiding and abetting bringing illegal aliens to the United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 2), and eighteen counts of aiding and abetting harboring illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii); 18 U.S.C. § 2). (See United States of America v. Alberto Noriega-Perez, Case No. CR 06- 02268-JM, Docket No. 279.) The court sentenced Noriega to 60 months in prison on September 30, 2010. (See id.) According to Respondent, the Bureau of Immigration and Customs Enforcement (" ICE") initiated removal proceedings against Noriega and detained him in a detention facility in El Centro, California, during his proceedings. (Motion at 4.) An immigration judge subsequently ordered Noriega removed to Mexico pursuant to Immigration and Nationality Act, as amended, section 237(a)(2)(A)(iii), 8 U.S.C. ยง 1227(a)(2)(A)(iii), as an alien convicted of an aggravated felony. (Docket No. 25 at Exhibit (" Exh.") A; see Motion, Exh. 1.) The Board of Immigration Appeals (" BIA") dismissed Petitioner's appeal of the immigration judge's ...


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