Toomer v. Nielsen

• Court: District Court, M.D. Pennsylvania
• Decided: February 10, 2020
• Docket: 3:19-cv-00740
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DELROY TOOMER, : No. 3:19cv740 Petitioner : : (Judge Munley) V. : (Magistrate Judge Saporito) KIRSTJEN NIELSEN; JEFF : SESSIONS; SIMONA FLORES; and: CLAIR DOLL, : Respondents :

ORDER AND NOW, to wit, this 10" day of February 2020, we have before us for

disposition Magistrate Judge Joseph F. Saporito Jr.’s report and

recommendation, which proposes that Delroy Toomer’s petition for a writ of

habeas corpus be dismissed as moot.’ (Doc. 9). Specifically, the report and

recommendation states that the basis of the petitioner's detention has shifted from 28 U.S.C. § 1226 to 28 U.S.C. § 1231 during the pendency of this action,

and that the challenge to his detention under § 1226 is thus rendered moot. See

1 On December 17, 2019, the respondents filed a suggestion of mootness, (Doc. 7), which indicated that the petitioner’s order of removal had become administratively final as of December 11, 2019. As such, the petitioner’s basis for detention shifted from 8 U.S.C. § 1226, which governs the detention of aliens while a decision of removal remains pending, to 8 U.S.C. § 1231, which governs the detention of aliens after the entry of a final order of removal. On December 18, 2019, Magistrate Judge Saporito issued an order directing the petitioner to file a response to the respondents’ suggestion of mootness. (Doc. 8). To date, the petitioner has not responded to the December 18, 2019 order.

Ufele v. Holder, 473 F. App’x 144, 146 (3d Cir. 2012) (dismissing the petitioner's

habeas challenge under § 1226 as moot when the authority for his detention had

switched to § 1231). No objections to the report and recommendation have been

filed, and the time for such filing has passed. Therefore, in deciding whether to

adopt the report and recommendation, we must determine if a review of the

record evidences plain error or manifest injustice. Feb. R. Civ. P. 72(b) 1983

Advisory Committee Notes (“When no timely objection is filed, the court need

only satisfy itself that there is no clear error on the face of the record to accept

the recommendation”); see also 28 U.S.C. § 636(b)(1); Sullivan v. Cuyler, 723

F.2d 1077, 1085 (3d Cir. 1983). After a careful review, we find neither a clear error on the face of the record

nor a manifest injustice, and therefore, we shall adopt the report and

recommendation. It is hereby ORDERED as follows:

1) The magistrate judge’s report and recommendation (Doc. 9) is ADOPTED; 2) The petitioner's request for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) is DENIED as MOOT; 3) The Clerk of Court is directed to CLOSE this case.

BY THE COURT Is James M. Munley JUDGE JAMES M. MUNLEY United States District Court