Kabir v. Bush

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AYMAN MOHAMMED AHMED ) ALSHURFA, ) ) Petitioner, ) ) v. ) Civil Action No. 05-431 (RJL) ) BARACK H. OBAMA, et al., ) ) Respondents. )

sf- MEMORANDUM ORDER (~ay~,2009) [#100]

Before the Court is petitioner's Notice of Petitioner's Involuntary Decision

to Withdraw Habeas Petition; ~otion for a Hearing into the Quality of Petitioner's

Purported Choice or, in the Alternative, to ~ove the Petitioner to Camp IV. ([Dkt.

#100].) To support the motion, petitioner's counsel relies exclusively on cases

involving the withdrawal of habeas petitions by criminal defendants convicted and

sentenced to death, in which courts have conducted an inquiry into the defendant's

mental capacity and the voluntariness of the defendant's decision. See, e.g., Smith

v. Armontrout, 812 F.2d 1050 (8th Cir. 1987), cert. denied, 483 U.S. 1033 (1987).

However, while the Supreme Court has held that petitioner is entitled to the

privilege of habeas corpus, Boumediene v. Bush, 128 S. Ct. 2229, 2240 (2008),

petitioner is not a criminal defendant, nor would petitioner's withdrawal deny

petitioner the opportunity to later re-file his petition for writ of habeas corpus.

~oreover, this Court lacks jurisdiction to entertain a challenge to the conditions of petitioner's confinement, 28 U.S.C. § 2241(e)(2); AI-Adahi v. Obama, 596 F.

Supp. 2d Ill, 117-20 (D.D.C. 2009) (citing cases), and petitioner's counsel's

request for a hearing concerning those conditions is, in effect, just such a

challenge. Indeed, petitioner's counsel's proposed alternative remedy is to

relocate petitioner to a different camp in order to potentially persuade petitioner to

reconsider his decision to withdraw his petition. (Mot. at 41.) Finally, the Court

adds that petitioner's counsel has not introduced sufficient, specific allegations

concerning petitioner's confinement to raise sufficient doubt in the Court's mind

that petitioner's instruction to counsel to withdraw his petition is anything but a

knowing and voluntary decision. Accordingly, it is hereby

ORDERED that petitioner's motion for a hearing into the quality of his

purported choice or, in the alternative, to move petitioner to Camp IV is DENIED;

it is further

ORDERED that, in order to ensure that the record accurately reflects

petitioner's intent, if petitioner wishes to voluntarily withdraw his petition,

petitioner shall file with the Court by July 1, 2009 a signed declaration stating that

(1) he wishes to withdraw his petition, (2) that he has made the decision to

withdraw his petition after consultation with counsel, (3) that he understands that

his petition will be dismissed without prejudice and that he may file a renewed

petition for writ of habeas corpus at a later time, and (4) that his withdrawal is

voluntary; and it is further

2 ORDERED that if petitioner is either unable to arrange for the execution of

the aforementioned declaration by July 1,2009 or if petitioner does not intend to

withdraw his petition, petitioner shall file a status report on or before July 1,2009

so notifying the Court.

SO ORDERED. ,. ~~ United States District Judge