United States District Court, N.D. Illinois, Eastern Division
August 24, 2005.
Milija Zivkovic Petitioner,
Alberto Gonzales, Attorney General of the United States; Michael Sheehan, Sheriff, Cook County Jail, Respondents.
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Respondents' motion to
dismiss Petitioner Milija Zivkovic's ("Zivkovic") petition for a
writ of habeas corpus ("Petition"). For the reasons stated
below, we grant the motion to dismiss in its entirety.
Zivkovic was originally in the custody of the U.S. Immigration
and Customs Enforcement. Zivkovic was subsequently taken into
custody by the Cook County Sheriff pursuant to an order issued by
a state Circuit Court judge ordering that Zivkovic be remanded to
state custody. Zivkovic is presently confined in the Cook County Jail in Chicago, Illinois, awaiting trial on state
criminal charges and is charged in a 140 Count criminal
indictment with an alleged aggravated criminal sexual assault
upon an elderly woman. Zivkovic has filed the instant Petition
seeking to challenge his current physical confinement. (Pet. P
Rel. Par. 1-2). Zivkovic has named Alberto Gonzales, Attorney
General of the United States ("Attorney General") and Michael
Sheehan, Sheriff of Cook County, Illinois ("Sheriff") as
Respondents in the Petition.
In ruling on a motion to dismiss, brought pursuant to Federal
Rule of Civil Procedure 12(b)(6) the court must draw all
reasonable inferences that favor the plaintiff, construe the
allegations of the complaint in the light most favorable to the
plaintiff, and accept as true all well-pleaded facts and
allegations in the complaint. Thompson v. Illinois Dep't of
Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins
v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The
allegations of a complaint should not be dismissed for a failure
to state a claim "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Conley v. Gibson, 355 U.S. 41,
Federal Rule of Civil Procedure 12(b)(1) requires a court to
dismiss an action when it lacks subject matter jurisdiction.
United Phosphorus, Ltd. v. Angus Chemical Co., 322 F.3d 942,
946 (7th Cir. 2003). If the concern of the court or party challenging subject matter jurisdiction is that "subject matter
jurisdiction is not evident on the face of the complaint, the
motion to dismiss pursuant to Rule 12(b)(1) would be analyzed as
any other motion to dismiss, by assuming for purposes of the
motion that the allegations in the complaint are true." Id.; see
also Ezekiel v. Michel, 66 F.3d 894, 897 (7th Cir. 1995)
(stating that when reviewing a motion to dismiss brought under
Rule 12(b)(1), this court "must accept as true all well-pleaded
factual allegations, and draw reasonable inferences in favor of
the plaintiff."). However, if the complaint appears on its face
to indicate that the court has subject matter jurisdiction, "but
the contention is that there is in fact no subject matter
jurisdiction, the movant may use affidavits and other material to
support the motion." Id. For the purpose of determining subject
matter jurisdiction, this court "may properly look beyond the
jurisdictional allegations of the complaint and view whatever
evidence has been submitted on the issue to determine whether in
fact subject matter jurisdiction exists." Ezekiel,
66 F.3d at 897 (quoting Capitol Leasing Co. v. Federal Deposit Insurance
Corp., 999 F.2d 188, 191 (7th Cir. 1993)). The burden of proof
in regards to a Rule 12(b)(1) motion is "on the party asserting
jurisdiction." United Phosphorus, Ltd., 322 F.3d at 946.
DISCUSSION I. Claim Against Attorney General
Respondents argue that the court should dismiss the Petition to
the extent that it is being brought against the Attorney General,
since Zivkovic is not in the Attorney General's custody. When a
habeas corpus petition is filed challenging the petitioner's
current physical confinement, the proper Respondent is the warden
or official overseeing the petitioner's custody that "has the
immediate physical custody of the party detained, with the power
to produce the body of such party. . . ." Rumsfeld v. Padilla,
124 S.Ct. 2711, 2717 (2004) (quoting Wales v. Whitney,
114 U.S. 564, 574 (1985)). This rule is consistent with 28 U.S.C. § 2243
which provides that "[t]he writ . . . shall be directed to the
person having custody of the person detained." 28 U.S.C. § 2243.
See also Padilla, 124 S.Ct. at 2720 (indicating that when a
petitioner is challenging his current physical custody, "the
immediate custodian, not a supervisory official who exercises
legal control, is the proper respondent."); al-Marri v.
Rumsfeld, 360 F.3d 707, 709 (7th Cir. 2004) (stating that
"when there is only one custody and one physical custodian, that
person is the proper respondent, and the district court in which
the prison is located is the proper district for proceedings
under § 2241(a)").
Zivkovic concedes in his answer to the motion to dismiss that
"his custody is technically controlled by the sheriff [sic] of
Cook County at the present time." (Ans. 1). Zivkovic has failed
to show that Defendant Attorney General is the head of or
controls the Cook County Sheriff's Office. Zivkovic has made a
variety of arguments in his answer to the motion to dismiss regarding his
custodial status. Despite the fact that Zivkovic's answer is
replete with legal assertions, other than a few citations in the
second paragraph of the answer, there is a complete absence of
citations to any evidentiary or legal authority whatsoever.
Instead, the bulk of Zivkovic's answer is merely an airing of
complaints without any properly articulated or supported legal
arguments. Zivkovic is represented by counsel and the court is
not obligated to do his work for him by researching the law and
making his arguments for him. Gold v. Wolpert, 876 F.2d 1327,
1332 (7th Cir. 1989) (stating that the plaintiff "merely
expects the court (and his opponents) to research his claims and
to test his hunch that `[t]here appear to be no laws' barring
`consultants' or `finders' from obtaining a recovery" and
stating: "We decline to do his work for him.").
Zivkovic states, for example, that "the Attorney General
retains complete legal control over petitioner's custody status,
no matter in whose custody petitioner momentarily exists [sic]."
(Ans. 2-3). Zivkovic does not provide any legal support for the
statement and such a statement merely adds to the incoherence of
Zivkovic's contentions. Zivkovic also states that "the case at
bar falls directly within the Vargas holding." (Ans. 3).
However, other than that cursory and conclusory statement, there
is no reference to the facts or holding of the case, or any
explanation as to how that holding is applicable. (Ans. 3).
Neither is there any citation to the case or page number to
indicate what Zivkovic seeks to focus upon in the case.
Notwithstanding this deficiency, Vargas v. Swan, 854 F.2d 1028
(7th Cir. 1988) which Zivkovic is apparently referring to, was decided in 1988
and since that time the United States Supreme Court has made it
clear in Padilla that the focus for the determination of the
proper Respondent in a habeas proceeding is the current
custodian that has physical custody of the petitioner.
Zivkovic next argues that the "Board's reversal of the bond
order and the pendency of removal proceedings" is a detainer.
(Ans. 3). However, Zivkovic cites no legal authority to support
such a notion. See 8 C.F.R. § 287.7(a) (explaining that "[a]ny
authorized immigration officer may at any time issue a Form
I-247, Immigration Detainer-Notice of Action, to any other
Federal, State, or local law enforcement agency" and that "[a]
detainer serves to advise another law enforcement agency that the
Department seeks custody of an alien presently in the custody of
that agency, for the purpose of arresting and removing the
Zivkovic also argues that the Attorney General is the head of
the Board of Immigration Appeals ("Board"), which Zivkovic claims
has control over his custody. Zivkovic states in a conclusory
fashion that "[i]t must be concluded that the Attorney General,
as the head of the Department of Justice and therefore the Board,
is in fact the person exercising actual and legal custody over
petitioner." (Ans. 3). However, Zivkovic fails to explain why
that "must" be so and Zivkovic has not pointed to any evidence or
legal authority that would indicate that the Board has current
control over his custody.
Zivkovic also complains that the state court judge's custodial
order "is vague on its face." (Ans. 3). However, Zivkovic fails to articulate any
legal argument in this regard or cite to any supporting case law.
Zivkovic then proceeds onward to speculate, without any legal or
evidentiary support, as to the purpose of the order issued by the
state court judge and the intent of the state court judge when
issuing the order. Zivkovic finishes his answer with one final
conclusory statement that "[i]t is clear that the February 25,
2005, order is actually reflective of the federal control of
petitioner's custody." (Ans. 4). However, Zivkovic has not shown
that such a conclusion is clear in any regard.
Zivkovic also asserts that removal proceedings against him
"remain pending" despite the "technical closure" of the
proceedings. (Ans. 2). The record reflects that the removal
proceedings were administratively closed with the acquiescence of
both parties. (JSR Par. 6). This court notes that an immigration
judge may not administratively close a case unless both parties
agree. In re Alba Luz Gutierrez-Lopez, 21 I & N Dec. 479, 480
(BIA 1996). However, whether the removal proceedings are pending
against Zivkovic or are administratively closed and may be
re-calendered in the future is irrelevant for the purposes of
Zivkovic's Petition. The pertinent issue in determining the
proper Respondent in a habeas action is not whether certain
proceedings are pending against the petitioner. Rather, as is
explained above, the key inquiry is which party has the immediate
physical custody of the petitioner. Padilla, 124 S.Ct. at 2720.
Zivkovic has acknowledged that he is in the custody of the
Sheriff and has not shown that he is in the immediate physical custody of the Attorney General. As a matter of fact, since
Zivkovic is currently and properly in state custody and state
court proceedings are ongoing, conceivably, Zivkovic could end up
being convicted and incarcerated for an extended period in a
state penal institution and remain in the custody of a state
official. The fact that immigration proceedings are pending
against Zivkovic and, after a period of state incarceration,
Zivkovic might be taken into custody of the federal government at
some future date for purposes of removal proceedings does not
currently make the Attorney General a proper Respondent in this
action. Therefore, we dismiss the habeas petition to the extent
that it is brought against the Attorney General because he is not
a proper Respondent.
II. Exhaustion of State Court Remedies
Respondents argue that the court should dismiss the Petition
because Zivkovic has not exhausted his state court remedies. A
petitioner must generally exhaust his state court remedies before
he can bring a petition seeking habeas relief. Schaff v.
Snyder, 190 F.3d 513, 524 (7th Cir. 1999); Steward v.
Gilmore, 80 F.3d 1205, 1211-12 (7th Cir. 1996). In the
instant action, Respondents argue, and Zivkovic does not deny,
that Zivkovic has not appealed the order of the state court judge
that has transferred him to the custody of the Sheriff. Neither
is there any indication by Zivkovic that he has filed a motion
for reconsideration with the state court judge that issued the
custody order. Thus, if Zivkovic desires to challenge his current detention, the proper avenue at this juncture would be to pursue
the state court appellate process rather than leaping ahead to
the federal court with a habeas corpus petition. Zivkovic has
not shown that any of the exceptions to the exhaustion
requirement are applicable or given any reason why he cannot
obtain the release from the custody of the Sheriff which Zivkovic
seeks in the Petition by pursuing his state court remedies. See
e.g., Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997)
(stating that "inordinate, unjustifiable delay in a state-court
collateral proceeding excuses the requirement of petitioners to
exhaust their state-court remedies before seeking federal habeas
corpus relief."); Nutall v. Greer, 764 F.2d 462, 464 n. 1
(7th Cir. 1985) (stating that "[a]n exception to the
exhaustion rule is made if there is no opportunity to obtain
redress in state court or if the corrective process is so clearly
deficient as to render futile any effort to obtain relief.");
Bonsol v. Perryman, 240 F.Supp.2d 823, 825 (N.D.Ill. 2003)
(stating that "where habeas corpus petitioners question the
constitutionality of a statute, they need not exhaust
administrative remedies prior to filing their petition.").
Therefore, we grant Respondents' motion to dismiss the Petition
and dismiss the Petition without prejudice to the extent that the
Petition is brought against the Sheriff. CONCLUSION
Based on the foregoing analysis, we grant Respondents' motion
to dismiss the Petition to the extent that it is being brought
against the Attorney General and we grant the motion to dismiss
the Petition to the extent that it is being brought against the
Sheriff without prejudice.
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