United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the Petition for a Writ of
Habeas Corpus Under 28 U.S.C. § 2241 (ECF No.
(“the Petition”) filed pro se by
Petitioner on May 7, 2019. The matter has been referred to
this Magistrate Judge for recommendation (ECF No.
Court must construe the Petition liberally because Petitioner
is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). However, the Court should not be an advocate for a
pro se litigant. See Hall, 935 F.2d at
Court has reviewed the filings to date. The Court has
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. This Magistrate Judge
respectfully recommends that the Petition be denied.
FACTUAL AND PROCEDURAL BACKGROUND
is confined at the Jefferson County Detention Facility in
Golden, Colorado. Petitioner alleges he was ordered removed
from the United States on March 28, 2012, based on a Colorado
state conviction for vehicular eluding that was found by an
immigration judge to be an aggravated felony under the
Immigration and Nationality Act. Petitioner currently is
being prosecuted in the District of Colorado for illegal
reentry of a removed alien subsequent to a felony conviction
in alleged violation of 8 U.S.C. § 1326(a) and (b)(1).
See United States v. Flores, No.
18-cr-00150-MSK-GPG. In the criminal case, Petitioner filed a
motion to dismiss the indictment, arguing that the March 2012
removal order is invalid because his Colorado conviction for
vehicular eluding is not an aggravated felony in light of the
United States Supreme Court's decision in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018). The motion to dismiss the
indictment was denied on April 8, 2019.
again contends in the Petition in this action that the March
2012 removal order is invalid in light of Dimaya.
Although Petitioner has not used the correct habeas corpus
application pleading form approved for use in the District of
Colorado, the Court will not require him to cure that
Court lacks subject matter jurisdiction over Petitioner's
claims challenging the removal order. “Federal courts
are not courts of general jurisdiction; they have only the
power that is authorized by Article III of the Constitution
and the statutes enacted by Congress pursuant thereto.”
Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986). In the REAL ID Act of 2005, Congress
curtailed habeas review of removal decisions by shifting
“certain immigration disputes formerly raised through
habeas corpus in the district courts to the courts of appeals
and converted them into petitions for review.” Hem
v. Maurer, 458 F.3d 1185, 1188 n.3 (10th Cir.
2006). In particular, “[t]he REAL ID Act expressly
divests district courts of jurisdiction over habeas
challenges to removal orders . . . and funnels all such
challenges to the appropriate court of appeals as the sole
and exclusive means for judicial review of an order of
removal.” Thoung v. United States, 913 F.3d
999, 1003 (10th Cir. 2019); see also Hem,
458 F.3d at 1188 n.3 (“a petition for review to an
appellate court [is] the sole means of review of an order of
removal issued under the [Immigration and Nationality Act],
and specifically excludes review under the habeas
statutes.”) Because the Court lacks subject matter
jurisdiction over Petitioner's claims challenging the
removal order, the Petition must be dismissed.
reasons set forth herein, this Magistrate Judge respectfully
that the Petition for a Writ of Habeas Corpus Under 28 U.S.C.
§ 2241 (ECF No. 5) be denied and the action be dismissed
for lack of subject matter jurisdiction.