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Jallah v. State

United States District Court, D. North Dakota

January 3, 2019

Richard Kolubah Jallah, Petitioner,
v.
State of North Dakota, Respondent.

          ORDER SUBSTITUTING NAMED RESPONDENT AND DIRECTING RESPONDENT TO ANSWER

          Charles S. Miller, Jr., United States Magistrate Judge

         I. BACKGROUND

         Petitioner was convicted in December 11, 2017, by the State of North Dakota for the offense of terrorizing. (No. 08-2017-CR-03178). Petitioner pled guilty and received a sentence of one-year deferred imposition, a one-year term unsupervised probation, and community service. Sometime thereafter, petitioner, a green card holder, was taken into Immigration and Customs Enforcement ("ICE") custody. Petitioner is currently incarcerated at the Sherburne County Jail in Elk River, Minnesota.

         On November 5, 2018, petitioner filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody. Petitioner is unclear in his request for relief, but appears to ask for his felony conviction to be "dropped" or for his case to be reopened and his probation terminated.

         II. JURISDICTION OVER § 2254 PETITIONS

         Petitioner appears to challenge the validity of the 2017 state conviction that allegedly forms the basis of his deportation order. Petitioner files his petition pursuant to 28 U.S.C. § 2254. § 2254 authorizes this court to "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added). The court must first address whether or not petitioner is "in custody" within the meaning of §2254.

         The U.S. Supreme Court held that the requirement under § 2254 that the person challenging a state court judgment be "in custody" is jurisdictional. Maleng v. Cook, 490 U.S. 488, 498 (1989). The "in custody" requirement is determined at the time the petition was filed. See id Physical custody is not necessary, but collateral consequences such as the right to vote or the risk of an enhanced sentence are not sufficient to render an individual "in custody". See Id. at 494; Jones v. Omningham, 371 U.S. 236, 240 (1963).

         A habeas court does not have jurisdiction over a § 2254 petition filed after expiration of a state sentence. See Maleng, at 492; Qgunwomoiu v. U.S., 512 F.3d 69, 74-75 (5th Cir. 2008); Kandiel v. US., 964 F.2d 794, 796 (8th Cir. 1992). But, in the present case, the state record suggests that at the time petitioner filed his habeas petition, November 5, 2018, his state sentence for one-year deferred imposition and one-year unsupervised probation had not been formally suspended and remained pending, thereby rendering petitioner "in custody" for the purposes of filing a habeas petition. Cf Maleng, at 492 (holding that habeas petition filed after expiration of state sentence removes subject matter jurisdiction because petitioner is not longer "in custody").

         Next, as a preliminary matter, the court must review the petition to ensure that the correct respondent has been named. See Rule 2(a) of the Rules Governing § 2254 Cases (requiring a petitioner currently in custody under a state-court judgment to name the state officer who has custody of the respondent).

         Here, petitioner names the State of North Dakota and the South Central Judicial District as respondents, presumably because petitioner pled guilty and was convicted in state district court in the South Central Judicial District of North Dakota. While petitioner is currently incarcerated in an ICE facility because his state court sentence has not expired he remains in the legal custody of the State. See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973) (state prisoner may bring petition in federal district where he is confined or in the federal district where the sentencing court is located).

         North Dakota law provides,

The director of the department of corrections and rehabilitation shall be responsible for offenders committed to the legal and physical custody of the department. The director shall retain, confine, and imprison each offender committed to the department until the expiration of the offender's sentence or until the offender is lawfully entitled to release.

N.D.C.C. § 12-47-18. Additionally, the advisory committee note to Rule 2(a) of the Rules Governing § 2254 states that a chief officer in charge of state penal institutions is a proper respondent in a §2254 petition.

         The court takes judicial notice that Leann Bertsch is the Director of the North Dakota Department of Corrections and Rehabilitation and therefore is the chief officer in charge of the State's penal institutions. It further finds that Director Bertsch functions as a proper respondent in this instance. See Ortiz-Sandoval v. Gomez.81 F.3d 891, 894 (9th Cir. 1996) ("The Director of Corrections functions as a proper respondent here. A contrary result would not serve the efficient administration of justice. In cases where a prisoner has been transferred or where his immediate custodian has otherwise been put in doubt, the Director of Corrections serves as an ...


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