United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN United States District Judge.
matter now is before the court on respondents' respective
motions for summary judgment (DE 10) and motion to dismiss
(DE 16). Petitioner responded to the motion for summary
judgment, but did not respond to the motion to dismiss. In
this posture, the issues raised are ripe for adjudication.
For the following reasons, the court grants respondents'
OF THE CASE
a state inmate incarcerated at Columbus Correctional
Institution, pleaded guilty in the Durham County Superior
Court to second-degree murder and was sentenced to 94-122
months imprisonment. (Resp't's Appx. (DE 12), Ex. 2).
On December 14, 2016, the United States Department of
Homeland Security United States Immigration and Customs
Enforcement (“ICE”) issued an immigration
detainer. (Id. Ex. 3). The detainer provided
petitioner notice of ICE's intent to assume custody of
petitioner after petitioner's release from incarceration
because petitioner may be subject to removal from the United
States under federal immigration law. (Id. Ex. 3).
interim, and prior to the issuance of petitioner's
detainer, petitioner filed the instant petition for a writ of
habeas corpus pro se raising claims pursuant to 28
U.S.C. § 2254 challenging his state court conviction,
and pursuant to 28 U.S.C. § 2241 challenging his
immigration detainer. Petitioner named Nora Hunt (the
“State respondent”) and ICE (the “federal
respondent”) as respondents in this action. In his
petition, petitioner alleged the following claims: (1)
violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution and the right to
a Speedy Trial pursuant to the Sixth Amendment to the United
States Constitution because the ICE detainer has been in
place for two years without resolution; (2) violation of the
Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution because the ICE detainer rendered
him ineligible for promotion to minimum custody, work
release, family visits, educational programs, career
opportunities, and extra-curricular activities; and (3)
ineffective assistance of counsel because his attorney failed
to advise him of the immigration-related collateral
consequences of his guilty plea.
December 16, 2016, the State respondent filed the instant
motion for summary judgment. The State respondent first
argued that the instant action should be transferred to the
United States District Court for the Middle District of North
Carolina pursuant to an inter-jurisdictional agreement. The
State respondent additionally argued that petitioner's
claims are without merit and that petitioner failed to
exhaust his state court remedies prior to filing the instant
action. The motion was fully briefed.
December 22, 2016, the federal respondent filed the instant
motion to dismiss. The federal respondent moved to dismiss
petitioner's first claim for lack of subject matter
jurisdiction. As for petitioner's second and third
claims, the federal respondent states that such claims
related to the execution of and validity of petitioner's
state conviction. Accordingly, the federal respondent defers
to the State respondent's arguments as to
petitioner's remaining two claims. Petitioner did not
respond to the federal respondent's motion.
Standards of Review
judgment is appropriate when there exists no genuine issue of
material fact, and the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Anderson v.
Liberty Lobby, 477 U.S. 242, 247 (1986). The party
seeking summary judgment bears the burden of initially coming
forward and demonstrating an absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party has met its burden,
the nonmoving party then must affirmatively demonstrate that
there exists a genuine issue of material fact requiring
trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). There is no issue
for trial unless there is sufficient evidence favoring the
non-moving party for a jury to return a verdict for that
party. Anderson, 477 U.S. at 250.
12(b)(1) motion to dismiss challenges the court's subject
matter jurisdiction, and the petitioner bears the burden of
showing that federal jurisdiction is appropriate when
challenged by the respondent. McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v.
Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Such a motion
may either 1) assert the complaint fails to state facts upon
which subject matter jurisdiction may be based, or 2) attack
the existence of subject matter jurisdiction in fact, apart
from the complaint. Bain, 697 F.2d at 1219. Under
the former assertion, the moving party contends that the
complaint “simply fails to allege facts upon which
subject matter jurisdiction can be based.” Id.
In that case, “the [petitioner], in effect, is afforded
the same procedural protection as he would receive under a
Rule 12(b)(6) consideration.” Id. “[T]he
facts alleged in the complaint are assumed true, and the
motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction.” Kerns
v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
When the respondent challenges the factual predicate of
subject matter jurisdiction, a court “is to regard the
pleadings' allegations as mere evidence on the issue, and
may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”
Richmond, Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765, 768 (4th Cir. 1991). The nonmoving
party “must set forth specific facts beyond the
pleadings to show that a genuine issue of material fact
respondent's motion to dismiss pursuant to Rule 12(b)(6),
a motion to dismiss under Rule 12(b)(6) determines only
whether a claim is stated; “it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). A claim is
stated if the complaint contains “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
evaluating whether a claim is stated, “[the] court
accepts all well-pled facts as true and construes these facts
in the light most favorable to the [petitioner], ” but
does not consider “legal conclusions, elements of a
cause of action, . . . bare assertions devoid of further
factual enhancement [, ] . . . unwarranted inferences,
unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d
250, 255 (4th Cir. 2009) (citations omitted). In other words,
this plausibility standard requires a petitioner to
articulate facts that, when accepted as true, demonstrate
that the petitioner has stated a claim that makes it
plausible he is entitled to relief. Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal
quotations omitted). On a motion to dismiss, courts
“may properly take judicial notice of matters of public
record.” Philips v. Pitt Cnty. Mem'l
Hosp., 572 F.3d 176, 180 (4th Cir. 2009).