Bosa v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Theo Bosa
v. 	Case No. 20-cv-262-PB
Northern New Hampshire Correctional
Facility Warden Corey Riendeau
REPORT AND RECOMMENDATION
Before the court is Theo Bosa’s petition for a writ of
habeas corpus, which he filed under 28 U.S.C. § 2241 (Doc. No.
1). 	Mr. Bosa is an inmate at the Northern New Hampshire
Correctional Facility (“NCF”). 	He has named the NCF as the
respondent, and he has asked this court to enjoin federal
agencies including U.S. Immigration and Customs Enforcement
(“ICE”) from transferring him out of this jurisdiction while
this case is pending. 	Mr. Bosa’s petition is before the court
to determine whether it is facially valid and may proceed. 	See
28 U.S.C. § 2243; Rule 4 of the Rules Governing Section 2254
Cases (“§ 2254 Rules”); see also § 2254 Rule 1(b) (authorizing
court to apply § 2254 Rules to § 2241 petitions); LR 4.3(d)(4).
Petitioner is serving a sentence of three to seven years in
prison, stand committed, imposed by the New Hampshire Superior
Court on September 7, 2016, after a jury convicted him of
second-degree assault. 	See Pet. (Doc. No. 1). 	Mr. Bosa’s
minimum sentence, marking the earliest date of his parole
eligibility, expired in 2019. 	His maximum sentence of seven
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years, imposed in 2016, has not yet expired. 	Public records
indicate that the New Hampshire Adult Parole Board will hear
petitioner’s application for parole at a March 5, 2020 hearing.
See N.H. Adult Parole Bd., March 5, 2020 Hearings, at
https://www.nh.gov/nhdoc/divisions/parole/hearings.html (last
visited Feb. 26, 2020).
Petitioner asserts that he is a refugee and a lawful
permanent resident of the United States. 	Mr. Bosa filed the
instant federal habeas petition after learning from his NCF
counselor that he will not be going home upon his release from
NCF; rather, he was told, ICE agents will take him into custody
at that time. 	Mr. Bosa asserts he has never received notice
from ICE or any other federal agency that he is the subject of
removal proceedings. 	In addition, Mr. Bosa asserts, at the time
of his September 2016 sentencing in Superior Court, both his
attorney and the prosecutor told the Superior Court judge that
“Mr. Bosa was not facing deportation or immigration proceedings,
‘due to the conditions in the Republic of Congo,’” and that “it
would not be safe for Mr. Bosa to be returned to the Republic of
Congo.” 	Pet. (Doc. No. 1) at 4. 	Petitioner asserts here that
he is being detained at NCF in violation of his federal due
process rights, and that he cannot exhaust his “administrative
remedies” on that claim as neither the prison nor a state court
can grant him relief.
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This court construes Mr. Bosa’s petition as intending to
challenge the authority of ICE to take him into custody upon his
release from state prison. 	This court has jurisdiction under 28
U.S.C. § 2241 to review the claims of inmates “in custody” in
violation of the Constitution or laws and treaties of the United
States. 	Mr. Bosa, however, is not presently in ICE custody1; he
remains in state custody pursuant to his state judgment of
conviction and sentence, whose validity is not drawn into
question by his claims in this case.2 	Whether or not ICE has
lodged a detainer with the New Hampshire Department of
1If ICE takes Mr. Bosa into custody and initiates removal
proceedings, cf. Demore v. Kim, 538 U.S. 510, 531 (2003)
(“[d]etention during removal proceedings is a constitutionally
permissible part of that process”), Mr. Bosa would have an
opportunity in those proceedings to present evidence and raise
claims challenging his deportability. 	See generally Reid v.
Donelan, 390 F. Supp. 3d 201, 213 (D. Mass. 2019), appeal
docketed, No. 19-1787 (1st Cir. Aug. 7, 2019). 	This court’s
jurisdiction in such matters is restricted, see, e.g., 8 U.S.C.
§ 1252(a)(5), but still exists in cases where the petitioner
raises federal claims challenging immigration detention as
prolonged and/or indefinite, see, e.g., Zadvydas v. Davis, 533
U.S. 678, 688 (2001); Reid, 390 F. Supp. 3d at 227-28.
2It does not appear that Mr. Bosa is challenging the
validity of his state conviction in this petition. 	To the
extent he plans, for example, to raise a Sixth Amendment
ineffective assistance of counsel claim relating to advice he
may have received about the immigration consequences of his
conviction, he must file a new petition under 28 U.S.C. § 2254
including all of his federal claims, demonstrating that he has
exhausted the available state court remedies as to each federal
claim he asserts in such a petition, see 28 U.S.C. § 2254(b).
Mr. Bosa might confront a substantial statute of limitations
problem if he were to file such a petition. 	Cf. 28 U.S.C.
§ 2244(d).
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Corrections (“DOC”), advising the DOC that ICE seeks take him
into custody upon his release from state prison, there is
presently too much uncertainty about the timing of Mr. Bosa’s
eventual release from state custody, and the circumstances that
might attend any future ICE custody, to make Mr. Bosa’s claims,
challenging future ICE custody, ripe for review at this time.
His present petition challenging future ICE detention following
his release from state custody is properly dismissed in its
entirety without prejudice. 	See Arrechavaleta v. Stine, No.
CV512-023, 2012 WL 6626092, at *1, 2012 U.S. Dist. LEXIS 180679,
at *4-5 (S.D. Ga. July 23, 2012), R&R approved, 2012 WL 6626044,
2012 U.S. Dist. LEXIS 179535 (S.D. Ga. Dec. 19, 2012); see also
Gonzalez v. Morris, No. 20-20359-CV-KING, 2020 U.S. Dist. LEXIS
32897, at *5 (S.D. Fla. Feb. 24, 2020).
Conclusion
Accordingly, the instant § 2241 petition - construed to
challenge the authority of ICE to take Mr. Bosa into custody
after he is released from his present state prison sentence –
should be dismissed without prejudice, and this case should be
closed. 	Any objections to this Report and Recommendation must
be filed within fourteen days of receipt of this notice. 	See
Fed. R. Civ. P. 72(b)(2). 	The fourteen-day period may be
extended upon motion. 	Failure to file specific written
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objections within the specified time waives the right to appeal
the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
February 28, 2020
cc: 	Theo Bosa, pro se
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