Mullings v. Finley
| Kyle Mullings and Kyle T. Mullings |
| Scott Finley |
| 1:2023cv09603 |
| November 1, 2023 |
| US District Court for the Southern District of New York |
| Paul A Engelmayer |
| 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 December 5, 2023. A more recent docket listing may be available from PACER.
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| Filing 15 MEMO ENDORSEMENT: on re: #14 Letter filed by Kyle T. Mullings. ENDORSEMENT: GRANTED. The Court thanks petitioner's counsel for this welcome update. The Court respectfully directs the Clerk of Court to close this case. (Signed by Judge Paul A. Engelmayer on 12/05/2023) (ama) |
| Filing 14 THIRD LETTER addressed to Judge Paul A. Engelmayer from Paul Felicione dated 12/5/23 re: Court Order Dated 12/04/2023. Document filed by Kyle T. Mullings..(Felicione, Paul) |
Filing 13
ORDER On November 21, 2023, the Court issued an order to show cause, requiring the parties' counsel to confer regarding settlement, and setting a briefing schedule on Mullings' s petition in the event that counsel could not come to an agreement. Dkt. 10. Under that schedule, Finley was to file a response to Mullings's petition by December 1, 2023. No such response has been received, nor has Finley entered an appearance in this matter. The Court orders Mullings's counsel, by December 6, 2023, to file a status update on the docket of this case. That status update must describe whether he has conferred with Finley's counsel (that is, the government) regarding issuance of the writ; whether the government opposes the relief sought; and whether Mullings continues to seek issuance of the writ. The Court notes that discussions with prison counsellors ( or other employees) will be deemed insufficient for this purpose; such discussions must have occurred with legal counsel. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 12/4/2023) (jca)
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| Filing 12 AFFIDAVIT OF SERVICE of Order served on Scott Finley, Warden on 11/21/23. Service was made by Mail. Document filed by Kyle T. Mullings..(Felicione, Paul) |
| Filing 11 AFFIDAVIT OF SERVICE of Order To Show Cause served on Scott Finley, Warden on 11/21/23. Service was made by Mail. Document filed by Kyle T. Mullings..(Felicione, Paul) |
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Filing 10
ORDER TO SHOW CAUSE: Mullings requests that the Court issue the writ to require respondent Scott Finley, Warden of FCI Schuylkill, to produce him for a deposition on December 13, 2023, at 10:00 a.m., to be taken within FCI Schuylkill. Dkt. 1 at 2. Given the rapidly approaching deadline for Mullings's scheduled deposition, the Court intends to deal with this matter with dispatch. First, the Court orders Mullings's counsel to serve this order upon Mullings by 5 p.m., November 22, 2023, and promptly to file proof of such service on the docket of this case. Second, the Court orders the parties' counsel to confer regarding settlement; given the limited scope of Mullings's request (a deposition to be taken within FCI Schuylkill), the Court is skeptical of the need for judicial intervention. Indeed, from the Court's preliminary review of the pertinent regulations (located at 28 C.F,R. 527.30-.31), it appears that such a deposition (as opposed to, say, in-person testimony at trial) strikes an appropriate balance between the state court's need for Mullings's evidence and FCI Schuylkill's interest in ensuring the safety of its staff and inmates. Third, in the event the parties are unable to resolve this matter, the Court sets the following briefing schedule for Mullings's petition: December 1, 2023: Finley's response to the petition. December 6, 2023: Mullings's reply, if any. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/21/2023) Scott Finley answer due 12/1/2023.( Deposition due by 12/13/2023., Replies due by 12/6/2023.) (ks)
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Filing 9
ORDER: The Court has received petitioner's letter, dated today, responding to yesterday's order. Dkt. 8. Given the lack of counsel for respondent, and the failure of petitioner's counsel timely to serve the Court's earlier order, the Court sees little use in going forward with today's initial conference. The Court hereby adjourns sine die said conference. The Court will issue, by separate order, an order to show cause requiring respondent to file a response to the petition forthwith. After the parties' briefs have been filed, the Court will determine whether a conference would aid its resolution of this matter. The Court orders petitioner's counsel to serve this order upon respondent forthwith, and to file proof of service to the docket of this case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/21/2023) (ks)
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| Filing 8 SECOND LETTER addressed to Judge Paul A. Engelmayer from Paul Felicione dated 11/21/23 re: Court Order Dated 11/20/2023. Document filed by Kyle T. Mullings..(Felicione, Paul) |
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Filing 7
ORDER On November 7, 2023, the Court scheduled the initial pretrial conference in this case for November 21, 2023 and directed the parties to confer and submit various pre-conference filings. Dkt. 6. The Court further ordered petitioner's counsel to serve a copy of its order on respondent and to promptly file proof of such service. No joint letter nor proof of service has been filed. Indeed, it appears no summons has been requested or issued in this case. The Court orders petitioners counsel, by 10 a.m., November 21, 2023, to file a letter on the docket addressing (1) whether respondent has been served with the Court's November 7 order; (2) whether petitioner's counsel has conferred with respondent's counsel; (3) if known to petitioner's counsel, whether respondent's counsel intends to appear at tomorrow's conference; and (4) when petitioner's counsel intends to serve respondent with a summons in the underlying case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/20/2023) (jca)
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Filing 6
ORDER: Initial Conference set for 11/21/2023 at 03:00 PM before Judge Paul A. Engelmayer. This conference will be held telephonically. The parties should call into the Court's dedicated conference line at (888) 363-4749, and enter Access Code 468-4906, followed by the pound(#) key. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/7/2023) (ks)
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| Filing 5 FIRST LETTER addressed to Judge Paul A. Engelmayer from Paul Felicione dated 11/06/2023 re: Court Order Dated 11/03/2023. Document filed by Kyle T. Mullings..(Felicione, Paul) |
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Filing 4
ORDER: The Court, however, acknowledges that earlier precedent is not pellucid on this point. In particular, in Carbo v. United States, 364 U.S. 611 (1961), the Court held that the writ of habeas corpus ad prosequendum ("prosecutorial writ") may issue extraterritorially, but left open the question as to the writ at issue here-the writ of habeas corpus ad testificandum ("testimonial writ"). For the avoidance of doubt, however, the Court sua sponte proposes to transfer this case to the Middle District of Pennsylvania, pursuant to 28 U.S.C. 1406(a), as courts routinely do when presented with Section 2241 petitions filed in an improper venue. See Shehnaz v. Ashcroft, No. 04 Civ. 2578 (DLC), 2004 WL 2378371, at *4 (S.D.N.Y. Oct. 25, 2004) (collecting cases). Given the rapidly approaching deadline for Mullings's scheduled deposition, the Court orders Mullings to file, by November 7, 2023, a letter on the docket of this case responding to the Court's proposal to transfer his petition. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 11/3/2023) (ks) (Main Document 4 replaced on 11/6/2023) (rro).
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| Filing 3 CIVIL COVER SHEET filed..(Felicione, Paul) |
| ***NOTICE TO ATTORNEY REGARDING CIVIL CASE OPENING STATISTICAL ERROR CORRECTION: Notice to attorney Paul J. Felicione. The following case opening statistical information was erroneously selected/entered: County code Bronx;. The following correction(s) have been made to your case entry: the County code has been modified to XX Out of State;. (jgo) |
| ***NOTICE TO ATTORNEY REGARDING DEFICIENT CIVIL COVER SHEET. Notice to attorney Paul J. Felicione to RE-FILE Document No. #2 Civil Cover Sheet. The filing is deficient for the following reason(s): the PDF attached to the docket entry for the civil cover sheet is not correct; Plaintiff party name does not match exactly as it appears on the pleading caption;. Re-file the document using the event type Civil Cover Sheet found under the event list Other Documents and attach the correct PDF. Use civil cover sheet issued by S.D.N.Y. dated October 1, 2020. The S.D.N.Y. Civil Cover Sheet dated October 1, 2020 is located at#http://nysd.uscourts.gov/file/forms/civil-cover-sheet.. (jgo) |
| ***NOTICE TO ATTORNEY REGARDING PARTY MODIFICATION. Notice to attorney Paul J. Felicione. The party information for the following party/parties has been modified: Kyle Mullings; Scott Finley. The information for the party/parties has been modified for the following reason/reasons: party name contained a typographical error; party text was omitted;. (jgo) |
| Magistrate Judge Gabriel W. Gorenstein is designated to handle matters that may be referred in this case. 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. (jgo) |
| Case Designated ECF. (jgo) |
| CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Paul A. Engelmayer. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. 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 #https://nysd.uscourts.gov/rules/ecf-related-instructions..(jgo) |
| Filing 2 FILING ERROR - PDF ERROR - CIVIL COVER SHEET filed..(Felicione, Paul) Modified on 11/2/2023 (jgo). |
| Filing 1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2241. (Filing Fee $ 5.00, Receipt Number ANYSDC-28508079)Document filed by Kyle Mullings. (Attachments: #1 Exhibit Summons & Complaint).(Felicione, Paul) |
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