United States District Court, D. Alaska
ORDER RE PENDING MOTIONS
L. GLEASON UNITED STATES DISTRICT JUDGE
the Court are two motions: at Docket 57 is Respondents'
Motion to Dismiss or for Entry of Judgment and at Docket 58
is Petitioner's Motion to Reopen, Alter or Amend. The
motions have been briefed; oral argument was not requested
and not necessary to the Court's
determinations. For the reasons set forth below,
Respondents' motion will be granted by entry of a final
judgment and Petitioner's Motion to Reopen, Alter or
Amend will be denied.
Juan Bautista Merino instituted this case on September 5,
2017, by filing a Petition for a Writ of Habeas Corpus Under
28 U.S.C. § 2241. A summary of the factual background of
this case is set forth at Docket 51, the Court's Order re
Petition for Habeas Corpus and Motion for Temporary
Restraining Order, and will not be repeated here.
the petition was filed, the Court issued an Order to Show
Cause directing the Petitioner to provide “the basis
for this Court's exercise of subject matter jurisdiction
over his petition.” The Court's order focused on the
jurisdictional restrictions applicable to expedited removal
orders. However, in their ensuing filings, the
parties agreed that Mr. Bautista's reinstated removal
order was not based on an expedited removal order to which 8
U.S.C. § 1225(b)(1) would apply. Petitioner's
jurisdictional briefing in response to the Order to Show
Cause explained why Section 1225(b)(1) was inapplicable and
addressed alternative bases for this Court's jurisdiction
over the habeas petition.
October 16, 2017, the Court issued its Order re Petition for
Habeas Corpus and Motion for Temporary Restraining
Order. The Court first held that as a district
court, it does not have jurisdiction to review Mr.
Bautista's challenge to the 2007 removal order; rather,
the forum for such a challenge would be the appropriate court
of appeals. But the Court held that it did have habeas
jurisdiction to review challenges to the conditions of Mr.
Bautista's detention by the federal government. Mr.
Bautista had sought an order that would preclude the
government from transferring him outside of Alaska, based on
his assertion that his right to access his Alaskan attorney
would be impacted. To address that concern, the Court ordered
Respondents “to facilitate the video conference
participation of counsel for Mr. Bautista at all future
immigration hearings outside of
Alaska[.]” The Court then denied the habeas petition
without prejudice, and denied the motion for a TRO except
with respect to the video conferencing.
November 7, 2017, the Clerk's Office at the district
court filed its standard deficiency notice, because no answer
or other response to the petition had been filed by
November 17, 2017, Respondents filed the motion to dismiss or
enter judgment that is currently pending with the Court. On
November 22, 2017, Petitioner filed the pending motion to
reopen, alter or amend.
motion to reopen, alter, or amend the case is untimely and
will be denied on that basis. Petitioner cites to three of
the Federal Rules of Civil Procedure in support of his
motion. Fed.R.Civ.P. 50(b) is inapplicable - it applies to
challenges to the sufficiency of the evidence in a civil jury
trial. Fed.R.Civ.P. 59(e) applies to amendment of judgments;
here, no judgment has yet been entered in this
case. Fed R. Civ. P. 60 allows for the
modification of final judgments, orders, and proceedings. The
applicable provision here is Local (Civil) Rule 59.1, which
applies to motions for reconsideration of non-appealable
orders. That rule requires that a motion for reconsideration
of an order “must be filed not later than fourteen (14)
days after entry of the order.” Here, the motion to reopen
or alter was not filed until November 22, 2017, over one
month after the Court's October 16, 2017 order had been
light of the foregoing, the Court will grant Respondents'
motion by directing the Clerk of Court to issue a final
judgment dismissing the petition without prejudice at this
IT IS ORDERED that:
Respondents' motion for entry of judgment at Docket 57 is
GRANTED and Petitioner's motion to ...