Tillett v. Booker

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 25, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
M AR VIN TILLETT,
Petitioner,
v. No. 06-9543
(No. A 34-496-797)
JOE BOOKER, W arden, FM C (Petition for Review)
Lexington, K Y ; D EPA RTM EN T OF
H O ME LA N D SEC UR ITY ;
IM M IG RA TIO N &
NA TURALIZATION SERVICE,
Respondents.
OR D ER AND JUDGM ENT *
Before M U RPH Y, EBEL, and O’BRIEN, Circuit Judges.
This case was originally filed in October 2005 in the United States District
Court for the Eastern District of Kentucky as a petition for a writ of habeas
corpus challenging a final order of deportation issued by the Board of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Immigration Appeals (BIA) in 1994. The district court dismissed the habeas
petition for lack of jurisdiction holding that the REAL ID Act of 2005 (RIDA)
“clearly deprived this Court of jurisdiction over the petitioner’s claims by
amending the judicial review provisions of section 242 of the Immigration and
Nationality Act, to make a petition for review in the federal courts of appeals the
sole means of review of a final immigration order of removal, deportation, or
exclusion.” Tillett v. Booker, No. Civ.A.05-CV-406-JM H, 2005 W L 2736740, at
*2 (E.D. Ky. Oct. 24, 2005) (quotation omitted). M r. Tillett appealed the district
court’s decision to the United States Court of Appeals for the Sixth Circuit.
On April 23, 2006, the Sixth Circuit issued an order affirming the district
court’s dismissal. The Sixth Circuit, however, construed M r. Tillett’s habeas
petition as a petition for review and decided to transfer the case to this court
because this court is the proper venue in which to file the petition for review.
Relying on the transfer provision in 28 U.S.C. § 1631, the Sixth Circuit concluded
that transferring the case to this court would be in the interest of justice. The
Sixth Circuit did note that there was a question as to whether the petition for
review was timely, but stated that this court should decide the timeliness issue.
On M ay 1, the petition for review was filed in this court. The government
filed a motion to dismiss for lack of jurisdiction because the petition for review
was untimely. M r. Tillett did not file a response to the motion. W e conclude that
-2-
M r. Tillett’s petition for review is untimely and dismiss the case for lack of
jurisdiction.
Under RIDA, if a 28 U.S.C. § 2241 habeas case challenging a final order of
removal was pending in the district court as of M ay 11, 2005, that case must be
transferred to the court of appeals and treated as a petition for review. See RID A ,
Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005), reprinted in 8 U.S.C.
§ 1252 note. Cases transferred under this provision are not subject to the
jurisdictional thirty-day time limit to file a petition for review , which is set forth
in 8 U.S.C. § 1252(b)(1). See id.; M edellin-Reyes v. Gonzales, 435 F.3d 721, 723
(7th Cir. 2006). As the Seventh Circuit explained:
[A]ll collateral proceedings pending on M ay 11, 2005, when the Real
ID Act took effect, and transferred to courts of appeals under
§ 106(c), must be treated as timely petitions for review, no matter
how long it has been since the Board rendered its decision.
Collateral proceedings filed on or after M ay 11 . . . will be dismissed
outright; the window for belated judicial review has closed.
Id. at 723-24.
M r. Tillett is not eligible to benefit from RIDA’s exception to the
thirty-day time limit for filing a petition for review. M r. Tillett’s petition for
review was transferred pursuant to 28 U.S.C. § 1631, not the transfer provision in
§ 106(c) of RIDA. The Sixth Circuit could not transfer the petition for review
pursuant to RIDA because M r. Tillett’s habeas petition was filed after M ay 11,
2005. RIDA’s transfer provision is only applicable to habeas petitions pending in
-3-
a district court as of M ay 11, 2005. See RIDA § 106(c); Chen v. Gonzales, 435
F.3d 788, 790 (7th Cir. 2006). As a result, M r. Tillett’s case remains subject to
8 U.S.C. § 1252(b)(1), which requires that “[t]he petition for review must be filed
not later than 30 days after the date of the final order of removal.” M r. Tillett’s
final order of removal was entered on October 27, 1994. The petition for review
is therefore untimely and this court lacks jurisdiction to consider it. See
Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003).
The petition for review is DISM ISSED and petitioner’s motion for release
is D ENIED as moot.
Entered for the Court
Per Curiam
-4-