Olu Victor Alonge, Petitioner v. Warden, FCI Berlin, Respondent

2024 DNH 076

• Court: District Court, D. New Hampshire
• Decided: September 13, 2024
• Docket: 23-cv-564-SM-AJ
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Olu Victor Alonge, Petitioner

v. Case No. 23-cv-564-SM-AJ Opinion No. 2024 DNH 076

Warden, FCI Berlin, Respondent

O R D E R

In October of 2019, the United States District Court for

the Northern District of Georgia sentenced the petitioner, Olu

Victor Alonge, to serve 120 months in prison for wire fraud.

Based upon accrued and anticipated good conduct time, Alonge’s

projected release date is October 6, 2026. He is subject to an

ICE detainer but he is not currently subject to a final order of

removal.

In December of 2023, while he was an inmate at FCI Berlin,

Alonge learned that the Bureau of Prisons planned to transfer

him to the Federal Correctional Institution in Victorville,

California, so he could be enrolled in the BOP’s “Institutional

Hearing Program.” That program “identifies federal inmates who may be removable from the United States and initiates their

removal proceedings before an immigration judge. Bringing

immigration judges to these inmates for a determination of their

removability allows their immigration case to be resolved prior

to their release from federal prison.” U.S. Dept. of Justice,

Exec. Office for Immigration Review, Fact Sheet, (Jan. 2018)

(emphasis supplied). See also BOP Program Statement 5111.04 CN-

1 (May 23, 2017) (outlining the purpose, scope, and procedures

of the Institutional Hearing Program). See generally Demore v.

Kim, 538 U.S. 510, 531, n.13 (2003) (“Congress has directed the

INS to identify and track deportable criminal aliens while they

are still in the criminal justice system, and to complete

removal proceedings against them as promptly as possible. The

INS therefore established the Institutional Hearing Program.”)

(citations omitted).

Upon learning of his impending transfer, Alonge filed the

pending petition for habeas relief. It in, he asserts that his

transfer to FCI Victorville and enrollment in the Institutional

Hearing Program would violate the terms of his sentence and

various constitutionally protected rights. He also claims it

would deprive him of time credits he properly accrued under the

First Step Act. As respondent, Alonge named his then-current

custodian, the warden of FCI Berlin.

2 Within days of filing that petition, however, Alonge was

transferred to FCI Victorville, at which point his custodian

became the Warden of that facility. Because the named

respondent - the Warden of FCI Berlin - is no longer Alonge’s

custodian, the government says this court lacks jurisdiction to

resolve Alonge’s petition and it must be dismissed. See 28

U.S.C. § 2242 (providing that a petitioner seeking a writ of

habeas corpus shall name as respondent “the person who has

custody over him”). See generally Rumsfeld v. Padilla, 542 U.S.

426, 435 (2004). (“[L]ongstanding practice confirms that in

habeas challenges to present physical confinement - “core

challenges” - the default rule is that the proper respondent is

the warden of the facility where the prisoner is being held, not

the Attorney General or some other remote supervisory

official.”).

The “default rule” discussed in Padilla is, however,

subject to at least one exception. It is implicated when an

inmate is transferred out of the district after having properly

filed a petition for habeas relief. This court has discussed

that exception at length and it need not be repeated. The point

is this: a district court need not dismiss a section 2241 habeas

petition upon the petitioner’s transfer, so long as jurisdiction

properly attached in the first instance and provided the Bureau

3 of Prisons, operating through the respondent Warden in his

official capacity, remains present in the district. See

Cummings v. Warden, FCI Berlin, No. 22-cv-468-SM-AJ, 2024 WL

1256068, at *3-4 (D.N.H. Mar. 25, 2024) (collecting cases,

including opinions from the Third, Seventh, Ninth, and Tenth

Circuits); see also Fox v. Warden, FCI Berlin, No. 21-cv-158-SE,

2022 DNH 051, 2022 WL 1085311 (D.N.H. Apr. 11, 2022); Jones v.

FCI Berlin, No. 21-cv-767-SE, 2023 DNH 019, 2023 WL 2186459

(D.N.H. Feb. 22, 2023); see generally Ex parte Endo, 323 U.S.

283, 304-06 (1944) (holding that when the government transferred

a habeas petitioner after she properly filed a petition naming

her immediate custodian, the district court retained

jurisdiction to issue a writ of habeas corpus to a respondent in

its jurisdiction who had the legal authority to effectuate the

petitioner’s release).

Because Alonge filed his petition prior to his transfer out

of this district and properly named his then-current custodian,

the court retains jurisdiction to resolve that petition.

Turning to the merits of Alonge’s claims, however, it is plain

that he is not entitled to any of the relief he seeks.

According to Alonge, the sentence imposed upon him provided

that, “Upon the completion of the imposed term of imprisonment

and release from the custody of the BOP, Petitioner [shall] be

4 turned over to immigration for removal proceedings.” Alonge

claims that if the BOP were to enroll him in the Institutional

Hearing Program before he completes his term of incarceration,

it would contravene the express terms of his sentence, violate

various constitutionally protected rights, and strip him of

certain benefits he has accrued under the First Step Act. The

court disagrees.

Alonge’s participation in the Program will simply allow the

government to resolve his immigration status and determine

whether, at the completion of his sentence, he is or is not

subject to deportation. Nothing in Alonge’s petition suggests

that such participation will unlawfully (or unconstitutionally)

affect the duration of his incarceration, or that it will

adversely affect his ability to apply properly accrued time

credits earned under the First Step Act. That is to say, if

Alonge is legally entitled to earn and apply time credits to his

sentence, he will be allowed to do so notwithstanding his

transfer. See generally 18 U.S.C.A. § 3632(d)(4). Indeed,

Alonge’s enrollment in the Institutional Hearing Program is

entirely consistent with the First Step Act, which provides

that, “The Attorney General, in consultation with the Secretary

of Homeland Security, shall ensure that any alien . . . who

seeks to earn time credits [is] subject to [immigration]

5 proceedings . . . at a date as early as practicable during the

prisoner’s incarceration.” 18 U.S.C. § 3632(d)(4)(E)(ii)

(emphasis supplied).

Conclusion

For the foregoing reasons, Alonge’s Petition and Emergency

Motion for Injunctive Relief (document no. 1) fails to set forth

any viable claims for relief. It is, therefore, denied and the

government’s motion to dismiss (document no. 5) is granted. The

Clerk of Court shall enter judgment in accordance with this

order and close the case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 13, 2024

cc: Olu Victor Alonge, pro se Terry L. Ollila, Esq.