Gutierrez v. Dubois

Gutierrez v. Dubois

Petitioner:	Ramon Gutierrez
Respondent:	Orange County Sherif Carl Dubois, Francis Russo, William Barr, Donald D. Vitiello and Acting Secretary KEVIN K MCALEENAN
Case Number:	1:2020cv02079
Filed:	March 9, 2020
Court:	US District Court for the Southern District of New York
Nature of Suit:	Habeas Corpus (General)
Cause of Action:	28 U.S.C. § 2241 fd
Jury Demanded By:	None

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Docket Report

This docket was last retrieved on August 17, 2021. A more recent docket listing may be available from PACER.

Date Filed	Document Text
March 9, 2020	Filing 30 CASE TRANSFERRED IN from the United States District Court - District of New York Northern; Case Number: 9:19-cv-00847. Original file certified copy of transfer order and docket entries received. (sjo)
March 9, 2020	Case Designated ECF. (sjo)
February 25, 2020	Filing 29 DECISION AND ORDER TRANSFERRING CASE to District of Southern New York: It is ORDERED that respondents' motion to transfer venue, Dkt. No. #23 , is GRANTED; and it is further ORDERED that, given the significant liberty interests at stake and the time-sensitivity of petitioner's claims, this Court waives the seven-day waiting period customarily afforded under the Local Rules and respectfully directs the Clerk to effectuate the transfer as soon as possible; and it is further ORDERED that the Clerk serve a copy of this Decision and Order on petitioner in accordance with the Local Rules. Signed by US Magistrate Judge Andrew T. Baxter on 2/25/2020. (Copy served via regular mail)(meb) [Transferred from New York Northern on 3/9/2020.]
February 18, 2020	Filing 28 CERTIFICATE OF SERVICE by William Barr, Carl Dubois, Kevin K. McAleenan, Francis Russo, Donald D. Vitiello re #27 Reply to Response to Motion (Hoggan, John) [Transferred from New York Northern on 3/9/2020.]
February 18, 2020	Filing 27 REPLY to Response to Motion re #23 MOTION to Transfer Case filed by William Barr, Carl Dubois, Kevin K. McAleenan, Francis Russo, Donald D. Vitiello. (Hoggan, John) [Transferred from New York Northern on 3/9/2020.]
February 12, 2020	Filing 26 TEXT ORDER: granting #25 Letter Request for an extension of time. Respondents' Reply to the #23 Motion to Transfer Case is due by 2/18/2020. So Ordered by U.S. Magistrate Judge Andrew T. Baxter on 2/12/2020. [Copy served upon pro se peitioner via regular mail.] (nmk) [Transferred from New York Northern on 3/9/2020.]
February 10, 2020	Filing 25 Letter Motion for William Barr, Carl Dubois, Kevin K. McAleenan, Francis Russo, Donald D. Vitiello requesting Extension of Briefing Schedule submitted to Judge Baxter . (Hoggan, John) [Transferred from New York Northern on 3/9/2020.]
February 6, 2020	Filing 24 RESPONSE: In Opposition to the #23 Motion to Transfer Case, filed by Ramon Gutierrez. (Attachments: #1 Mailing Envelope)(rep) [Transferred from New York Northern on 3/9/2020.]
January 9, 2020	Filing 23 MOTION to Transfer Case Motion Hearing set for 2/13/2020 10:00 AM in Syracuse before US Magistrate Judge Andrew T. Baxter Response to Motion due by 1/27/2020 Reply to Response to Motion due by 2/3/2020. filed by William Barr, Carl Dubois, Kevin K. McAleenan, Francis Russo, Donald D. Vitiello. (Attachments: #1 Memorandum of Law, #2 Appendix Unreported Cases, #3 Certificate of Service) Motions referred to Andrew T. Baxter. (Hoggan, John) [Transferred from New York Northern on 3/9/2020.]
January 9, 2020	Filing 22 NOTICE of Appearance by John D. Hoggan, Jr on behalf of All Defendants (Hoggan, John) [Transferred from New York Northern on 3/9/2020.]
January 6, 2020	Filing 21 NOTICE of Appearance by John D. Hoggan, Jr on behalf of William Barr, Kevin K. McAleenan, Francis Russo, Donald D. Vitiello (Hoggan, John) [Transferred from New York Northern on 3/9/2020.]
December 6, 2019	Filing 20 TEXT ORDER: Pursuant to the October 10, 2019 Decision and Order, Respondents' response(s) to the petition are due by January 10, 2020. Authorized by US Magistrate Judge Andrew T. Baxter on 12/6/19. {text order served via regular mail on petitioner}(nas, ) [Transferred from New York Northern on 3/9/2020.]
October 10, 2019	Filing 19 DECISION AND ORDER: It is ORDERED that the Clerk update the named respondents on the docket to reflect those named in the caption of this Order; and it is further ORDERED that petitioner's application to proceed IFP, Dkt. No. #16 , is DENIED; and it is further ORDERED that the Clerk serve a copy of this Decision and Order on petitioner in accordance with the Local Rules; and it is further ORDERED that the Clerk serve copies of this Decision and Order, the petition (Dkt. No. #2 ), the Court's July Order (Dkt. No. #11 ), and petitioner's affirmation (Dkt. No. #18 ) upon respondents and the United States Attorneys Office by mail in accordance with the Local Rules; and it is further ORDERED that respondents shall file and serve an answer or otherwise move in opposition to the petition, and provide the Court with the relevant records, within ninety (90) days of the date of this Decision and Order; It is ORDERED that petitioner may, but is not required to, file a reply within thirty (30) days of the filing date of respondents' answer. Response due by William Barr served on 10/10/2019, answer due 12/9/2019; Carl Dubois served on 10/10/2019, answer due 12/9/2019; JFK Port of Entry served on 10/10/2019, answer due 12/9/2019; Kevin K. McAleenan served on 10/10/2019, answer due 12/9/2019; Francis Russo served on 10/10/2019, answer due 12/9/2019; Donald D. Vitiello served on 10/10/2019, answer due 12/9/2019. Signed by US Magistrate Judge Andrew T. Baxter on October 10, 2019. {Served as directed}.(rep) Modified on 10/10/2019 (rep, ). [Transferred from New York Northern on 3/9/2020.]
September 25, 2019	Filing 18 AFFIDAVIT: Filed by Ramon Gutierrez, in support of his #2 Petition, pursuant to the Text Order of Magistrate Andrew T. Baxter dated August 30, 2019. (Attachments: #1 Envelope, #2 Mailing Envelope)(rep) [Transferred from New York Northern on 3/9/2020.]
August 30, 2019	Filing 17 TEXT ORDER: Petitioner's request for an extension of time to "make corrections and complete [the Court Ordered affidavit]," is GRANTED. Dkt. No. #14 . The Court's prior Decision and Order dated July 25, 2019, asked petitioner to update his address and explain why his petition was not moot. Dkt. No. 11 at 8-9 ("July Order"). Petitioner has recently submitted several documents, Dkt. Nos. 13, 14, and 15, which establish petitioner's current address and identify the location of his continued custody. However, the Court is willing to provide petitioner a further opportunity to correct and clarify his habeas claims and requests for relief. Petitioner's affidavit shall be due on or before September 30, 2019. If petitioner fails to timely file said affidavit, the Court will evaluate the jurisdictional issues previously identified in its July Order based upon the documents now before it. Authorized by US Magistrate Judge Andrew T. Baxter on 8/30/19. (nas, ) [Transferred from New York Northern on 3/9/2020.]
August 26, 2019	Filing 16 MOTION for Leave to Proceed in forma pauperis filed by Ramon Gutierrez. (Attachments: #1 envelope) (nas, ) [Transferred from New York Northern on 3/9/2020.]
August 26, 2019	Filing 15 AFFIDAVIT in support by Ramon Gutierrez. (nas, ) [Transferred from New York Northern on 3/9/2020.]
August 26, 2019	Filing 14 Letter Motion from Ramon Gutierrez requesting an extension of time. (Attachments: #1 envelope)(nas, ) [Transferred from New York Northern on 3/9/2020.]
August 14, 2019	Filing 13 NOTICE of Change of Address by Ramon Gutierrez Effective Date 8/8/19 New Address: Orange County Jail and submission in support of petition. (Attachments: #1 Exhibit(s), #2 envelope)(nas, ) [Transferred from New York Northern on 3/9/2020.]
August 14, 2019	Docket No. 11 reserved on petitioner at Orange County Jail. (nas, ) [Transferred from New York Northern on 3/9/2020.]
August 7, 2019	Filing 12 Mail Returned as Undeliverable; re: #11 Order. Sent to Gutierrez Address sent to Green Haven Correctional Facility. Envelope reads "return to sender- no longer here". (nas, ) [Transferred from New York Northern on 3/9/2020.]
July 25, 2019	Filing 11 DECISION AND ORDER: It is ORDERED that, within thirty (30) days of this Decision and Order, petitioner shall: (1) update his address with the court; and (2) file an affidavit, not to exceed fifteen (15) pages in length, detailing why his release has neither mooted the action nor deprived the court of jurisdiction. Petitioner is explicitly warned that, pursuant to Rule 10.1(c)(2) of the Local Rules of Practice of the Northern District, "All attorneys of record and pro se litigants must immediately notify the Court of any change of address," cases cannot proceed without litigants updating their addresses with the court, and, pursuant to Rule 41.2(b) of the Local Rules, "Failure to notify the Court of a change of address in accordance with L.R. 10.1(b) may result in the dismissal of any pending action." Accordingly, petitioner must provide the Clerk of the Court with his present address; and it is further ORDERED that, upon the filing by petitioner of the aforementioned documents, the Clerk is directed to return the file to the court for further review; and it is further ORDERED that, if petitioner does not file a notification of his present address and an affidavit addressing the specified jurisdictional issues within thirty (30) days of the filing date of this Decision and Order, the court will dismiss the petition without further order of the court for failure to prosecute and comply with the court's orders. Signed by Senior Judge Gary L. Sharpe on July 25, 2019. (Notice of Compliance Deadline 8/26/2019, Case Review Deadline 9/25/2019)(Copy served via regular mail)(rep) [Transferred from New York Northern on 3/9/2020.]
July 16, 2019	Filing 10 Case transferred in from District of New York Southern; Case Number 1:19-cv-04387. electronically transferred when case opened [Transferred from New York Northern on 3/9/2020.]
July 10, 2019	Mailed a copy of #9 Order, to Ramon Gutierrez 09-A-3702 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582-4000. (vba) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
July 9, 2019	CASE TRANSFERRED OUT ELECTRONICALLY from the U.S.D.C. Southern District of New York to the United States District Court - District of Northern District of New York (mro) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
July 9, 2019	Filing 9 TRANSFER ORDER: The Clerk of Court is directed to mail a copy of this order to Petitioner, docket the order in both actions, and note service on both dockets. The Clerk of Court is further directed to transfer these actions to the United States District Court for the Northern District of New York. Whether Petitioner should be permitted to proceed further without payment of fees is a determination to be made by the transferee court. This order closes this case. Because Petitioner has not at this time made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue under 28 U.S.C. 2253. The Court certifies under 28 U.S.C. 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue). The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. (Signed by Judge Colleen McMahon on 7/9/2019) (mro) Transmission to Docket Assistant Clerk for processing. Transmission to Office of the Clerk of Court for processing. [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
July 1, 2019	Filing 8 ORDER of USCA (Certified Copy) USCA Case Number 19-1465. Petitioner moves for leave to file a successive 28 U.S.C. 2254 petition. Upon due consideration, it is hereby ORDERED that the motion is DENIED as unnecessary because Petitioner's proposed 2254 petition would not be successive. A 2254 petition is successive if a prior 2254 petition challenged the same criminal judgment, was decided on the merits, and reached final adjudication before the filing of the present motion. See Garcia v. Superintendent of Great Meadow Corr. Facility, 841 F.3d 581, 583 (2d Cir. 2016) (per curiam); Whab v. United States, 408 F.3d 116, 11819 (2d Cir. 2005). In Magwood v. Patterson, the Supreme Court held that "where... there is a new judgment intervening between the two habeas petitions,... an application challenging the resulting new judgment is not 'second or successive' at all." 561 U.S. 320, 34142 (2010) (internal citation omitted). Here, Petitioner challenges his custody pursuant to an amended judgment issued in May 2019, after the filing of his first 2254 petition. Accordingly, his proposed 2254 petition is not successive and he does not need this Court's authorization to file it in the district court. It is further ORDERED that both proceedings are TRANSFERRED to the district court. Whab, 408 F.3d at 119; see also 28 U.S.C. 1631 (permitting transfer of an action to an appropriate venue in the interest of justice"). Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 07/01/2019. (Attachments: #1 Motion for Second or Successive Petition for a Writ of Habeas Corpus)(nd) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
June 20, 2019	Received returned mail re: #7 Order Striking Document from Record. Mail was addressed to Ramon Gutierrez 09-A-3702 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582-4000 and was returned for the following reason(s): Return to Sender - No Longer Here. Return to Sender, Refused, Unable to Forward. (aea) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 30, 2019	Mailed a copy of #7 Order Striking Document from Record to Ramon Gutierrez 09-A-3702 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582-4000. (vba) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 29, 2019	Filing 7 ORDER: The Clerk of Court is directed to strike document number 6 from this case, as it was erroneously filed in this action. (Signed by Judge Colleen McMahon on 5/29/2019) (rdz) Transmission to Docket Assistant Clerk for processing. [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 28, 2019	***DELETED DOCUMENT. Deleted document number 6 TRANSFER ORDER. The document was incorrectly filed in this case. (rdz) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 28, 2019	NOTICE OF CASE REASSIGNMENT - SUA SPONTE to Judge Colleen McMahon. Judge Gregory H. Woods is no longer assigned to the case. (rjm) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 28, 2019	FILING ERROR - DUPLICATE DOCKET ENTRY & ENTERED IN WRONG CASE- Non-Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Non-Appeal Electronic Files for 6 Order, were transmitted to the U.S. Court of Appeals. (tp) Modified on 5/29/2019 (nd). [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 20, 2019	Mailed a copy of #5 Transfer Order U.S.C.A., to Ramon Gutierrez 09-A-3702 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582-4000. (vba) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 20, 2019	Non-Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Non-Appeal Electronic Files for #5 Transfer Order U.S.C.A., were transmitted to the U.S. Court of Appeals. (tp) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 17, 2019	Filing 5 TRANSFER ORDER: The Clerk of Court is directed to mail a copy of this order to Petitioner and note service on the docket. In the interest of justice, the petition is transferred to the United States Court of Appeals for the Second Circuit. See 28 U.S.C. 1631; see also Liriano v. United States, 95 F.3d119, 122-23 (2d Cir. 1996) (per curiam). This order closes this case. If the Court of Appeals authorizes Petitioner to proceed in this matter, he shall move to reopen this case under this civil docket number. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. 2253. The Court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Sent original file along with documents numbered 1-5, certified copy of docket entries and transfer order. Mailed via Inter-Office Mail on 5/17/2019. (Signed by Judge Gregory H. Woods on 5/17/2019) (ama) Transmission to Appeals Clerk. Transmission to Docket Assistant Clerk for processing. [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 14, 2019	Filing 3 MEMORANDUM OF LAW in Support re: #2 Petition for Writ of Habeas Corpus. Document filed by Ramon Gutierrez. (rdz) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 14, 2019	Filing 2 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2254. (Filing Fee $ 5.00, Receipt Number 465401235586)Document filed by Ramon Gutierrez.(rdz) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 14, 2019	Filing 1 CIVIL COVER SHEET filed. (rdz) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 14, 2019	Magistrate Judge Barbara C. Moses 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. (rdz) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]
May 14, 2019	Case Designated ECF. (rdz) [Transferred from New York Southern on 7/16/2019.] [Transferred from New York Northern on 3/9/2020.]

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Petitioner: Ramon Gutierrez
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Respondent: Orange County Sherif Carl Dubois
Represented By:	John D. Hoggan, Jr.
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Respondent: Francis Russo
Represented By:	John D. Hoggan, Jr.
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Respondent: William Barr
Represented By:	John D. Hoggan, Jr.
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Respondent: Donald D. Vitiello
Represented By:	John D. Hoggan, Jr.
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Respondent: Acting Secretary KEVIN K MCALEENAN
Represented By:	John D. Hoggan, Jr.
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