         10-1736-pr
         Garcia v. Dep’t of Homeland Sec.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the                   United States Court of Appeals
 2       for the Second Circuit, held                   at the Daniel Patrick Moynihan
 3       United States Courthouse, 500                  Pearl Street, in the City of New
 4       York, on the 11th day of May,                  two thousand eleven.
 5
 6       PRESENT: WILFRED FEINBERG,
 7                ROGER J. MINER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12       CARLOS GARCIA,
13
14                      Petitioner-Appellant,
15
16              -v.-                                                        10-1736-pr
17
18       DEPARTMENT OF HOMELAND SECURITY,
19
20                      Respondent-Appellee.
21
22
23       FOR APPELLANT:                Carlos Garcia, pro se, Batavia, New York.
24
25       FOR APPELLEE:                 Gail Y. Mitchell, Assistant United States
26                                     Attorney, for William J. Hochul, Jr.,
27                                     United States Attorney for the Western
28                                     District of New York.
29
30              Appeal from judgment entered April 22, 2010, in the

31       United States District Court for the Western District of New
 1   York (Telesca, J.), which denied Petitioner’s third petition

 2   for habeas corpus, in which he claimed that his continued

 3   detention violates Zadvydas v. Davis, 533 U.S. 678 (2001).

 4       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 5   AND DECREED that the district court’s judgment is AFFIRMED.

 6       Petitioner-Appellant Carlos Garcia, pro se, appeals

 7   from the district court’s judgment insofar as it denied his

 8   third habeas petition, in which he alleged that his

 9   continued detention violates Zadvydas.   We assume the

10   parties’ familiarity with the underlying facts and the

11   procedural history.

12       We review a district court’s denial of habeas relief de

13   novo but review its findings of fact only for clear error.

14   Esposito v. Ashcroft, 392 F.3d 549, 550 (2d Cir. 2004) (per

15   curiam).   “Under the common law ‘abuse of the writ’

16   doctrine, a court need not entertain a petition that abuses

17   the habeas process.   One frequently recognized indicator of

18   abusiveness is whether the petitioner could have asserted

19   his present claims in his prior petition.”   Id.    Thus, where

20   a petitioner has failed to appeal a previous unfavorable

21   habeas decision, raising a subsequent habeas petition with

22   the same claim abuses the writ.   See id. at 551.


                                   2
 1       Generally, the government bears the burden of pleading

 2   abuse of the writ.   McCleskey v. Zant, 499 U.S. 467, 494

 3   1991); see also Lewis v. McElroy, 294 F. App’x 637, 640 (2d

 4   Cir. 2008).   Nevertheless, this procedural rule that places

 5   the burden on the government does not prevent district

 6   courts from invoking the doctrine sua sponte, so long as the

 7   district court conforms to the same “clarity and

 8   particularity requirements set forth in McClesky.”    Femia v.

 9   United States, 47 F.3d 519, 523 (2d Cir. 1995) (internal

10   quotation marks omitted).    Before invoking the doctrine sua

11   sponte, district courts must provide notice, except in

12   circumstances where the petition, liberally construed,

13   “admits of no possibility of actual prejudice.”    Id. at 524.

14       Here, it is clear that no prejudice ensued from the

15   district court’s sua sponte invocation of the abuse of the

16   writ doctrine.   We hold that Garcia’s continued detention is

17   lawful for substantially the same reasons as the district

18   court provided when it denied his second petition.    See

19   Garcia v. Heron, No. 09-CV-416, 2009 WL 3231924, at *2-6

20   (W.D.N.Y. Oct. 1, 2008).    Garcia is detained under INA § 236

21   pending our review of his claims, rather than INA § 241,

22   which authorizes detention pending removal.    Id. at *2.


                                    3
 1   Zadvydas applies to INA § 241, not INA § 236.     See Wang v.

 2   Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003).     Thus, Zadvydas

 3   is inapplicable.   In addition, Garcia’s removal has been

 4   stayed at his own request.   This self-inflicted wound cannot

 5   establish grounds for a Zadvydas claim.   See Abimbola v.

 6   Ridge, 181 F. App’x 97, 99 (2d Cir. 2006).    Moreover, a

 7   review of Garcia’s second § 2241 petition shows that he was

 8   released from detention in January 2008, but violated the

 9   conditions of his release, removed his GPS device,

10   absconded, and subsequently was re-detained after arrest by

11   fugitive operations.   These circumstances suggest Garcia is

12   a flight risk.

13       Accordingly, the district court’s denial of Garcia’s

14   third habeas petition is AFFIRMED to the extent that the

15   petition alleged an unconstitutional, prolonged detention.

16   We make no decision about Garcia’s claim of derivative

17   citizenship in his appeal docketed number 09-4211-pr, which

18   remains pending before this Court.

19                                FOR THE COURT:
20                                Catherine O’Hagan Wolfe, Clerk.
21
22




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