Kergil v. Bureau of Prisons et al
| James Kevin Kergil |
| Bureau of Prisons, Residential Reentry Center and Ms. Cosme |
| 1:2023cv05949 |
| July 11, 2023 |
| US District Court for the Southern District of New York |
| John P Cronan |
| Colleen McMahon |
| Habeas Corpus (General) |
| 28 U.S.C. § 2241 fd Petition for Writ of Habeas Corpus (Federal) |
| None |
Docket Report
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This docket was last retrieved on August 9, 2023. A more recent docket listing may be available from PACER.
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MAILING RECEIPT: Document No: 11. Mailed to: James Kevin Kergil 258 High Street Peekskill, NY 10566. (ta)
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Filing 11
CLERK'S JUDGMENT re: #10 Order. It is hereby ORDERED, ADJUDGED AND DECREED: That for the reasons stated in the Court's Decision and Order dated August 3, 2023, Kergil's petition is denied as moot. Accordingly, the case is closed. (Signed by Clerk of Court Ruby Krajick on 8/8/2023) (Attachments: #1 Appeal Package) (tp)
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MAILING RECEIPT: Document No: 10. Mailed to: James Kevin Kergil 258 High Street Peekskill, NY 10566. (sha)
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Filing 10
DECISION AND ORDER DENYING AS MOOT PETITIONER'S MOTION FILED PURSUANT TO 28 U.S.C. 2241: Accordingly, Kergil's petition is denied as moot. (Signed by Judge Colleen McMahon on 8/3/2023) (mml) Transmission to Orders and Judgments Clerk for processing.
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Filing 9
CERTIFICATE OF SERVICE of Respondents Memorandum of Law in Opposition to Petition for Writ of Habeas Corpus (ECF No. 7) and the Declaration of Kenneth Bork (ECF No. 8) served on James Kevin Kergil on July 28, 2023. Service was made by Certified Mail. Document filed by Bureau of Prisons..(Kristofcak, Alexander)
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Filing 8
DECLARATION of Kenneth Bork in Opposition re: #6 LETTER MOTION for Extension of Time to File Response/Reply as to #1 Petition for Writ of Habeas Corpus, #3 Order to Answer, 28 U.S.C. 2241,,,,,, addressed to Judge Colleen McMahon from the Respondent dated July 27, 2023.. Document filed by Bureau of Prisons. (Attachments: #1 Exhibit Sentence Monitoring Computation Data, July 18, 2023, #2 Exhibit Inmate History Adm-Rel, July 28, 2023, #3 Exhibit FSA Time Credit Assessment, July 2, 2023, #4 Exhibit Inmate History Fin Resp, July 20, 2023, #5 Exhibit FRP Refusal Documents, June 10, 2020, #6 Exhibit Public Information Inmate Data, July 28, 2023).(Kristofcak, Alexander)
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Filing 7
MEMORANDUM OF LAW in Opposition re: #6 LETTER MOTION for Extension of Time to File Response/Reply as to #1 Petition for Writ of Habeas Corpus, #3 Order to Answer, 28 U.S.C. 2241,,,,,, addressed to Judge Colleen McMahon from the Respondent dated July 27, 2023. . Document filed by Bureau of Prisons..(Kristofcak, Alexander)
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Filing 6
LETTER MOTION for Extension of Time to File Response/Reply as to #1 Petition for Writ of Habeas Corpus, #3 Order to Answer, 28 U.S.C. 2241,,,,,, addressed to Judge Colleen McMahon from the Respondent dated July 27, 2023. Document filed by Bureau of Prisons..(Kristofcak, Alexander)
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Filing 5
NOTICE OF APPEARANCE by Alexander Kristofcak on behalf of Bureau of Prisons..(Kristofcak, Alexander)
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Filing 4
INFORMATION PACKAGE MAILED to James Kevin Kergil 258 High Street Peekskill, NY 10566 on 07/17/2023 Re: #3 Order to Answer, 28 U.S.C. 2241. The following document(s) were enclosed in the Service Package: a copy of the order of service or order to answer and other orders entered to date, the individual practices of the district judge and magistrate judge assigned to your case, Instructions for Litigants Who Do Not Have Attorneys, Notice Regarding Privacy and Public Access to Electronic Case Files, a flyer about the free legal assistance clinic located in the Thurgood Marshall Courthouse (only in non prisoner cases), a Motions guide, a notice that the Pro Se Manual has been discontinued, a Notice of Change of Address form to use if your contact information changes, a handout explaining matters handled by magistrate judges and consent form to complete if all parties agree to proceed for all purposes before the magistrate judge, a form for you to complete if you consent to receive filings electronically (only in nonprisoner cases). (ta)
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Filing 3
ORDER TO ANSWER, 28 U.S.C. 2241... The Court hereby ORDERS that: The Clerk of Court shall electronically notify the Civil Division of the U.S. Attorney's Office for the Southern District of New York that this Order has been issued. Within ten days of the date of this order, the U.S. Attorney's Office shall file an answer or other pleadings in response to the petition. Petitioner may file reply papers, if any, within five days from the date Petitioner is served with Respondent's answer. The expedited briefing schedule reflects the Court's concern that Kergil's convictions may be overturned in light of light of Ciminelli v. United States, No. 21-1170, 98 U.S. -- (2023). In Ciminelli, the Supreme Court held that valuable economic information needed to make discretionary economic decisions is not a traditional property interest and does not constitute "property" for purposes of the federal wire-fraud statute, and therefore the "right-to-control" theory cannot form the basis for a conviction under the federal fraud statutes. The case of Kergil's codefendant Michael Binday was recently vacated by the Supreme Court on Ciminelli grounds, and is currently on remand before the Second Circuit, where the parties are actively briefing the Ciminelli "right to control" issue. The Court expects that any response by the Government to Kergil's 2241 motion include a discussion on the continued viability of Kergil's conviction in light of Ciminelli, and how that factors into his present motion. SO ORDERED. (Signed by Judge Colleen McMahon on 7/17/2023) Copies Mailed By Chambers. (mml)
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NOTICE OF CASE REASSIGNMENT to Judge Colleen McMahon. Judge John P. Cronan is no longer assigned to the case. (sgz)
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Filing 1
PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2241. (Filing Fee $ 5.00, Receipt Number 410) Document filed by James Kevin Kergil. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7).(rdz) Modified on 7/12/2023 (rdz). Modified on 7/12/2023 (rdz).
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Case Designated ECF. (rdz)
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Magistrate Judge Jennifer Willis 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: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (rdz)
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