Wellington v. Barr et al
| Dennis Wellington |
| Department Of Homeland Security, William Barr, Thomas R. Decker and U.S. Department of Homeland Security |
| 1:2019cv01986 |
| March 1, 2019 |
| US District Court for the Southern District of New York |
| Edgardo Ramos |
| Habeas Corpus - Alien Detainee |
| 28 U.S.C. § 2241 in |
| None |
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Filing 7
OPINION AND ORDER, Accordingly, a habeas corpus petition should name as the respondent "the person who has custody over [the petitioner]," 28 U.S.C. 2242, that is, the petitioner's "immediate custodian," Rumsfeld v. Padilla, 542 U.S. 426, 43940 (2004). "[I]n habeas challenges to present physical confinement'core challenges'the default rule is that the proper respondent is the warden of the facility where the prisoner is being held," and the writ is issuable only in "the district of confinement." Rumsfeld, 542 U.S. at 436, 442. Although the Supreme Court in Padilla "left open the question whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation," id. at 435 n.8, "a majority of district courts in this Circuit have applied the immediate custodian rule to such challenges," Cesar v. Shanahan, No. 17 Civ. 7974 (ER), 2018 WL 1747989, at *1 (S.D.N.Y. Feb. 5, 2018) (citation and internal quotation marks omitted). Here, Wellington is detained at the Hudson County Correctional Center, which is in the District of New Jersey. However, Wellington does not name as respondent his immediate custodianthe warden of the Hudson County Correctional Center. Rather, Wellington names several individuals who are best considered "remote supervisory officials." See Rumsfeld, 542 U.S. at 435 ("[T]he default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official."). Consequently, neither the present district nor the present respondents are proper. Because Wellington was confined in New Jersey at the time he filed this petition, and because the warden of the Hudson County Correctional Center is his immediate custodian, the government's motion to transfer this petition to the United States District Court for the District of New Jersey is GRANTED. See 28 U.S.C. 1406(a). Petitioner's motion to stay proceedings pending transfer is DENIED for the reasons set forth on the record. It is SO ORDERED. (Signed by Judge Edgardo Ramos on 3/27/2019) (kv)
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| Received e-mail from the United States District Court - District of New Jersey acknowledging receipt of transferred case. Assigned Case Number: 2:19-cv-08948, filed on 03/26/2019. (sjo) |
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Filing 6
ORDER: The Clerk of Court is respectfully directed to transfer this action to the United States District Court for the District of New Jersey as expeditiously as feasible. This Order closes the case in the United States District Court for the Southern District of New York. An Opinion will follow. (Signed by Judge Edgardo Ramos on 3/26/2019) (kgo)
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| Filing 5 LETTER addressed to Judge Edgardo Ramos from Brandon M. Waterman dated March 26, 2019 re: This action should be transferred immediately to the District of New Jersey. Document filed by William Barr, Thomas R. Decker, U.S. Department of Homeland Security. (Attachments: #1 Exhibit 1 (IJ Order))(Waterman, Brandon) |
| Minute Entry for proceedings held before Judge Edgardo Ramos: Emergency Hearing held on 3/26/2019. Petitioner's counsel present. Respondents' counsel present. The case will be transferred to the District of New Jersey. (jar) |
| CASE TRANSFERRED OUT ELECTRONICALLY from the U.S.D.C. Southern District of New York to the United States District Court - District of District of New Jersey (kgo) |
| Filing 4 NOTICE OF APPEARANCE by Brandon Matthew Waterman on behalf of William Barr, Thomas R. Decker, U.S. Department of Homeland Security. (Waterman, Brandon) |
| Filing 3 NOTICE OF APPEARANCE by Gregory Paul Copeland on behalf of Dennis Wellington. (Copeland, Gregory) |
| ***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Sarah Telo Gillman. The party information for the following party/parties has been modified: William Barr; Thomas R. Decker; U.S. Department of Homeland Security. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; party text was omitted. (sj) |
| ***NOTICE TO ATTORNEY REGARDING CIVIL. CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Sarah Telo Gillman. The following case opening statistical information was erroneously selected/entered: County code Albany. The following correction(s) have been made to your case entry: the County code has been modified to Kings. (sj) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Edgardo Ramos. Please download and review the Individual Practices of the assigned District Judge, located at #http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #http://nysd.uscourts.gov/ecf_filing.php. (sj) |
| Case Designated ECF. (sj) |
| Magistrate Judge Sarah Netburn is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #http://nysd.uscourts.gov/forms.php. (sj) |
| Filing 2 CIVIL COVER SHEET filed. (Gillman, Sarah) |
| Filing 1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2241. (Filing Fee $ 5.00, Receipt Number ANYSDC-16431863)Document filed by Dennis Wellington. (Attachments: #1 Exhibit I-130 Approval, #2 Exhibit Certificate of Birth Z.L.W., #3 Exhibit Certificate of Birth D.E.W, #4 Exhibit Provisional Waivers)(Gillman, Sarah) |
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