McPherson v. US Immigration and Customs Enforcement et al
| Delroy Horace McPherson |
| US Immigration and Customs Enforcement, Alejandro Mayorkas, Patrick Lechleitner, Todd Lyons and Christopher Brackett |
| 6:2024cv06239 |
| April 23, 2024 |
| US District Court for the Western District of New York |
| Charles J Siragusa |
| Other Immigration Actions |
| 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus (federa |
| None |
Docket Report
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| Filing 30 Case transferred in from District of New Hampshire; Case Number 1:23-cv-00241. |
| Civil Case Terminated. (ko) [Transferred from nhd on 4/23/2024.] |
| ENDORSED ORDER granting re #26 Motion to Change Venue. Text of Order: Petitioner Delroy Horace McPherson's motion to change venue (Doc. No. 26) under 28 U.S.C. 1404(a), to which the respondents assent, seeks to transfer this case to the U.S. District Court for the Western District of New York, where Mr. McPherson is presently incarcerated. As all parties consent to the requested change of venue, the motion is GRANTED. The Clerk's office is directed to transfer this matter to the Western District of New York. So Ordered by US Magistrate Judge Andrea K Johnstone.(ko) [Transferred from nhd on 4/23/2024.] |
| Remark: Petitioner has been mailed a pro se packet including a privacy notice, consent to proceed before a Magistrate Judge, and a civil case timeline. (CGJ) |
| Notice of ASSENT by Federal Respondents as to #26 MOTION to Change Venue.(Ollila, Terry) [Transferred from nhd on 4/23/2024.] |
| Filing 29 NOTICE of Change of Address re Delroy Horace McPherson - Buffalo Federal Detention Facility (BFDF), 4250 Federal Drive, Batavia, NY 14020. (ko) [Transferred from nhd on 4/23/2024.] |
| ENDORSED ORDER re #26 Motion to Change Venue. Text of Order: Petitioner, who was incarcerated at the Strafford County Department of Corrections ("SCDOC") when he filed his petition, was transferred on April 9, 2024 to the Batavia Federal Detention Facility in Batavia, New York ("BFDF"). Petitioner has filed a motion (Doc. No. 26) seeking a change of venue in this case to the Western District of New York ("WDNY"), the federal judicial district in which the BFDF is located, pursuant to 28 U.S.C. 1404(a). Section 1404(a) permits the court to transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented. Neither the federal respondents nor the SCDOC Superintendent responded to the petitioner's motion by the April 15, 2024 objection deadline. As the 28 U.S.C. 2241 petition in this case could not have been filed in the WDNY at the time it was filed, as the petitioner was not then located in that district, the Court cannot grant the petitioner's motion unless all the parties consent to the requested change of venue. Accordingly, the respondents are directed to file an objection to the motion to change venue, or to notify the Court that they consent to the relief requested in that motion, by April 22, 2024. If any party fails to file an objection by that date, the Court will deem such party or parties to have consented to the petitioner's motion and to the transfer of this case to the WDNY. So Ordered by US Magistrate Judge Andrea K Johnstone. (Follow up on Objection on 4/22/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).) (ko) [Transferred from nhd on 4/23/2024.] |
| ENDORSED ORDER denying as moot re #25 Motion for Expedited Treatment. Text of Order: Petitioner's motion for expedited treatment (Doc. No. 25) is DENIED as moot, as the petitioner was transferred out of the Strafford County Department of Corrections on April 9, 2024. So Ordered by US Magistrate Judge Andrea K Johnstone. (ko) [Transferred from nhd on 4/23/2024.] |
ENDORSED ORDER re #28 Notice of Emergency Notice of Transfer on April 9, 2024. Text of Order: Reviewed. So Ordered by Judge Joseph N. Laplante. (ko) [Transferred from nhd on 4/23/2024.]
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| Filing 28 NOTICE of Emergency Notice of Transfer on April 9, 2024 (Replaces DN 27 to include Certificate of Service) by Patrick Lechleitner, Todd Lyons, Alejandro Mayorkas, US Immigration and Customs Enforcement.(Ollila, Terry) [Transferred from nhd on 4/23/2024.] |
| Filing 27 NOTICE of Emergency Notice of Transfer on April 9, 2024 by Patrick Lechleitner, Todd Lyons, Alejandro Mayorkas, US Immigration and Customs Enforcement.(Ollila, Terry) [Transferred from nhd on 4/23/2024.] |
| Filing 26 MOTION to Change Venue filed by Delroy Horace McPherson. Served on 4/1/2024. Follow up on Objection on 4/15/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 25 Motion for Expedited Treatment filed by Delroy Horace McPherson. Served on 4/1/2024. Follow up on Objection on 4/15/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 24 AMENDED Petition for Writ of Habeas Corpus under 28 USC 2241 filed by Delroy Horace McPherson. (Docketed per 2/23/2024 Endorsed Order.)(ko) [Transferred from nhd on 4/23/2024.] |
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ENDORSED ORDER: Petitioner Delroy Horace McPherson has filed a motion to amend (Doc. No. 22) his petition for a writ of habeas corpus as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1)(B). The motion is GRANTED, and the Clerk's office is directed to docket Document No. 22-1 as the Amended Petition in this matter, and to refer the Amended Petition to the Magistrate Judge for preliminary review. Because an amended petition has been filed, the federal respondents' pending motion to dismiss (Doc. No. 19) is DENIED without prejudice to the federal respondents' ability to file a new motion to dismiss after the Magistrate Judge completes preliminary review of the Amended Petition, and therefore, the petitioner's motion to extend the deadline to respond to the motion to dismiss (Doc. No. 21) is DENIED AS MOOT. The petitioner's motions for release on bond (Doc. No. 6), and for issuance of the writ (Doc. No. 8) are DENIED, without prejudice to Mr. McPherson's ability to move to renew those motions, or to file new motions seeking similar relief, after the Magistrate Judge completes preliminary review of the Amended Petition. Accordingly, the federal respondents' motion to extend the deadline to respond to Document Nos. 6 and 8 (Doc. No. 20) is DENIED AS MOOT. Finally, after filing his Amended Petition, Mr. McPherson filed a motion for summary judgment (Doc. No. 23). The respondents' deadline to respond to that motion is STAYED pending further order of the Court, to be issued after preliminary review of the Amended Petition. So Ordered by Judge Joseph N. Laplante.(ko) Modified on 2/23/2024 to modify "Document No. 26-1" to Document No. 22-2 (ko). [Transferred from nhd on 4/23/2024.]
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| Filing 23 MOTION for Summary Judgment filed by Delroy Horace McPherson.Follow up on Objection on 3/21/2024. (Attachments: #1 Exhibit (Affidavit) Motion for Summary Judgment Declaration of Affidavit, #2 Exhibit Attachments to Motion for Summary Judgment, #3 Envelope)(jb) [Transferred from nhd on 4/23/2024.] |
| Filing 22 Petitioner Amended and Supplemental Pleadings/MOTION to Amend #1 Petition for Writ of Habeas Corpus - 2241 filed by Delroy Horace McPherson.Follow up on Objection on 3/5/2024. (Attachments: #1 Amended and Supplemental Pleadings, #2 Envelope)(jb) [Transferred from nhd on 4/23/2024.] |
| Filing 21 MOTION to Extend Time to Object/Respond to #19 MOTION to Dismiss to Respond to the Federal Respondents Memorandum of Law in Support of Motion to Dismiss filed by Delroy Horace McPherson. Served on 2/2/2024. Follow up on Objection on 2/16/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 20 MOTION to Extend Time to Object/Respond to #8 MOTION for Writ for Pursuant to 28 U.S.C.S. 2243 Issuance ofwrit; return; hearing; decision Requesting Release., #6 MOTION for Summons Rule 4 and Motion for Release from Custody to 14 Days After Issuance of Court Order filed by Patrick Lechleitner, Todd Lyons, Alejandro Mayorkas, US Immigration and Customs Enforcement.Follow up on Objection on 2/9/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(Ollila, Terry) [Transferred from nhd on 4/23/2024.] |
| Filing 19 MOTION to Dismiss filed by Patrick Lechleitner, Todd Lyons, Alejandro Mayorkas, US Immigration and Customs Enforcement.Follow up on Objection on 2/9/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: #1 Memorandum of Law MOL In Support of MTD, #2 Exhibit (Affidavit) Declaration of Keith Chan)(Ollila, Terry) [Transferred from nhd on 4/23/2024.] |
| ENDORSED ORDER: Petitioner Delroy Horace McPherson filed a petition for a writ of habeas corpus, under 28 U.S.C. 2241, challenging his present detention in U.S. Immigration and Customs Enforcement (ICE) custody. Before the court is the petitioner's "Motion for Summons Rule 4/Motion for Release from Custody" (Doc. No. 6) and a motion entitled "Pursuant to 28 U.S.C.S. 2243/Issuance of writ; return; hearing; decision/Requesting Release" (Doc. No. 8). To the extent Mr. McPherson's motions seek service of this action on the respondents, they are DENIED as moot, as the Court directed service in this matter on November 27, 2023. See Doc. No. 9. In its order directing service, the court construed Documents Nos. 6 and 8 as addenda to Mr. McPherson's habeas petition. The petition, which the court has construed as comprised of the legal and factual assertions in Mr. McPherson's filings docketed as Document Nos. 1 - 6 and 8, has been served on the respondents. Respondents' response to the petition is due January 29, 2024. The Court now further directs that the respondent's file an objection or other response to the pending motions (Doc. Nos. 6, 8) by February 12, 2024. So Ordered by US Magistrate Judge Andrea K Johnstone. (Follow up on Objection on 2/12/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).) (ko) [Transferred from nhd on 4/23/2024.] |
| ENDORSED ORDER denying re #16 Petitioner's Motion for Objecting to a Ruling or Order Rule 60(b) Motion for Relief from Final Order re 12/7/2023 Endorsed Order. Text of Order: The Court construes Petitioner Delroy Horace McPherson's "Motion for Objecting to a Ruling or Order Rule 60(b) Motion for Relief from Final Order" (Doc. No. 16) as a motion to reconsider its December 7, 2023 ruling granting the respondent's motion (Doc. No. 11) to extend his deadline to respond to Mr. McPherson's petition for a writ of habeas corpus on the basis that the Court entered that Order prior to receiving Mr. McPherson's objection (Doc. No. 14) thereto. So construed, Mr. McPherson's motion (Doc. No. 16) is DENIED as it fails to demonstrate that the Court's December 7, 2023 Order "was based on a manifest error of fact or law." See LR 7.2(d). Additionally, the Court has reviewed Mr. McPherson's objection (Doc. No. 14) and determines that nothing therein would have caused the Court to deny the respondent's motion to extend. So Ordered by US Magistrate Judge Andrea K Johnstone.(ko) [Transferred from nhd on 4/23/2024.] |
| NOTICE of ECF Filing Error re: #18 Notice of Attorney Appearance filed by Walter Ramos re Christopher Brackett. Filing User's PACER account shall be updated pursuant to AP 6.2(d). If the filing party has any questions concerning this notice, please contact the judge's case manager at 603-225-1423.Compliance Deadline set for 1/11/2024.(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 18 NOTICE of Attorney Appearance by Walter Ramos on behalf of Christopher Brackett SCDOC Superintendent Attorney Walter Ramos added to party Christopher Brackett(pty:res).(Ramos, Walter) [Transferred from nhd on 4/23/2024.] |
| Filing 16 Motion to Reconsider the 12/7/2023 Order. Petitioner's Motion for Objecting to a Ruling or Order Rule 60(b) Motion for Relief from Final Order re 12/7/2023 Endorsed Order filed by Delroy Horace McPherson.Follow up on Objection on 1/2/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c). (Attachments: #1 Envelope)(jb) Modified on 1/9/2024 to modify the motion title per order dated 1/9/2024(ko). [Transferred from nhd on 4/23/2024.] |
| Filing 17 Return of Service Executed (certified mail receipt) received by US Attorney General as to US Immigration and Customs Enforcement (jb) [Transferred from nhd on 4/23/2024.] |
| Filing 15 NOTICE of Mail Returned- Return to Sender Attempted - Not Known - Unable to Forward re Clerk Service,, #9 Order Directing Service.(jb) [Transferred from nhd on 4/23/2024.] |
| Filing 14 OBJECTION to #11 MOTION to Extend Time to Object/Respond to #1 Petition for Writ of Habeas Corpus - 2241 to January 29, 2024 served on 12/11/2023 filed by Delroy Horace McPherson. (Attachments: #1 Envelope)(jb) [Transferred from nhd on 4/23/2024.] |
| Filing 13 Return of Service Executed as to US Immigration and Customs Enforcement. Served/Mailed on 12/7/2023.(ko) [Transferred from nhd on 4/23/2024.] |
| ENDORSED ORDER granting re #11 Motion to Extend Time to Object/Respond re #1 Petition for Writ of Habeas Corpus - 2241 to January 29, 2024. Text of Order: Granted. So Ordered by US Magistrate Judge Andrea K Johnstone. Follow up on Answer on 1/29/2024. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 12 Return of Service Executed as to Christopher Brackett. Served/Mailed on 11/30/2023.(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 11 MOTION to Extend Time to Object/Respond to #1 Petition for Writ of Habeas Corpus - 2241 to January 29, 2024 filed by Patrick Lechleitner, Todd Lyons, Alejandro Mayorkas, US Immigration and Customs Enforcement. Attorney Terry L. Ollila added to party Patrick Lechleitner (pty:res), Attorney Terry L. Ollila added to party Todd Lyons(pty:res), Attorney Terry L. Ollila added to party Alejandro Mayorkas(pty:res), Attorney Terry L. Ollila added to party US Immigration and Customs Enforcement(pty:res).Follow up on Objection on 12/20/2023. The court only follow up date DOES NOT include 3 additional days that may apply per FRCP 6(d) and FRCrP 45(c).(Ollila, Terry) [Transferred from nhd on 4/23/2024.] |
| Filing 10 Return of Service Executed as to US Immigration and Customs Enforcement. Served/Mailed on 11/30/2023.(ko) [Transferred from nhd on 4/23/2024.] |
| SERVICE BY CLERK: Copies mailed via certified mail, return receipt requested to United States Immigration and Customs Enforcement (ICE) Boston Field Office Director, 1000 District Ave., Burlington, MA, 01803; to the Attorney General of the United States, the Department of Homeland Security Secretary; and to the ICE Director, in Washington, D.C.; copy delivered to US Attorney's Office for the District of New Hampshire; Copies to US Marshal as to Christopher Brackett per #9 Order Directing Service.(ko) [Transferred from nhd on 4/23/2024.] |
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Filing 9
ORDER Directing Clerk and US Marshal to Make Service. Superintendent Brackett must file an appearance in this matter within twenty-one days of being served. Superintendent Brackett is not required to file an answer or other response to the petition at this time. The federal respondents are directed to file an answer or dispositive motion in response to the petition within twenty-one days of the date of service on the United States Attorney's Office for the District of New Hampshire. So Ordered by US Magistrate Judge Andrea K Johnstone.(ko) [Transferred from nhd on 4/23/2024.]
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| Filing 8 Motion re Pursuant to 28 U.S.C.S. 2243 Issuance of writ; return; hearing; decision Requesting Release filed by Delroy Horace McPherson. Served on 11/20/2023. HEARING REQUESTED.(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 7 Letter to Delroy Horace McPherson from Deputy Clerk re: Status of case. (ko) [Transferred from nhd on 4/23/2024.] |
| ENDORSED ORDER granting re #4 Motion to Amend #1 Petition for Writ of Habeas Corpus - 2241 Motion to Terminate Order of Supervision Bond Reinstated, #5 Motion to Amend re #1 Petition for Writ of Habeas Corpus - 2241 Motion to Terminate Order of Supervision Bond Reinstated. Text of Order: Petitioner Delroy Horace McPherson has filed a petition for a writ of habeas corpus under 28 U.S.C. 2241 (Doc. No. 1) and two motions (Doc. Nos. 4, 5) seeking to amend his petition. The motions to amend are GRANTED and the court will consider the factual allegations and legal assertions in Document Nos. 4 and 5 to be part of the petition in this matter for all purposes. The petition and petition addenda are subject to preliminary review under LR 4.3(d)(4) and Rule 4 of the Rules Governing 2254 Proceedings ( 2254 Rules). See 2254 Rule 1(b) (applying 2254 Rules to habeas petitions filed under 2241). So Ordered by US Magistrate Judge Andrea K Johnstone.(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 6 MOTION for Summons Rule 4 and Motion for Release from Custody filed by Delroy Horace McPherson.(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 5 MOTION to Amend re #1 Petition for Writ of Habeas Corpus - 2241 Motion to Terminate Order of Supervision Bond Reinstated filed by Delroy Horace McPherson.(ko) [Transferred from nhd on 4/23/2024.] |
| Filing 4 MOTION to Amend #1 Petition for Writ of Habeas Corpus - 2241 Motion to Terminate Orer of Supervision Bond Reinstated filed by Delroy Horace McPherson.(vln) [Transferred from nhd on 4/23/2024.] |
| Filing 3 Documents transferred from 23-cv-267-SE (vln) [Transferred from nhd on 4/23/2024.] |
| ENDORSED CONSOLIDATION ORDER. Text of Order: The petition in Case No. 23-cv-267-SE (Doc. No. 1), transferred here from the District of Connecticut, is identical to the petition that was previously docketed in the District of New Hampshire as Case No. 23-cv-241-JL (ECF No. 1). As the two petitions are identical, and the two cases are in fact one case, in the interest of judicial economy, this court directs that they be consolidated into one case, and that the transferred case thereafter be closed administratively, with all filings in that case redocketed in Case No. 23-cv-241-JL, so that Document Nos. 1-6 in Case No. 23-cv-267-SE, along with a copy of this Order, will become part of the record in the consolidated case. Accordingly, the clerk's office is directed to file a copy of this Order in both cases, and to take the clerical steps necessary to consolidate Case No. 23-cv-267-SE into Case No. 23-cv-241-JL, so that only Case No. 23-cv-241-JL survives the consolidation. Then the clerk's office shall close Case No. 23-cv-267-SE administratively. All filings pertinent to this matter, going forward, must be marked with the docket number for the surviving case only, Case No. 23-cv-241-JL. So Ordered by US Magistrate Judge Andrea K Johnstone.(vln) [Transferred from nhd on 4/23/2024.] |
| Filing 2 Documents transferred from 23-cv-249-LM.(vln) [Transferred from nhd on 4/23/2024.] |
| ENDORSED CONSOLIDATION ORDER. Text of Order: The petitioner in this case, Delroy Horace McPherson, simultaneously filed two identical petitions for a writ of habeas corpus under 28 U.S.C. 2241 in two different courts. The petition in Case No. 23-cv-249-LM (Doc. No. 1), transferred here from the District of Massachusetts, is identical to the petition that was previously docketed in the District of New Hampshire as Case No. 23-cv-241-JL (ECF No. 1). As the two petitions are identical, and the two cases are in fact one case, in the interest of judicial economy, this court directs that they be consolidated into one case, and that the transferred case thereafter be closed administratively, with all filings in that case redocketed in Case No. 23-cv-241-JL, so that Document Nos. 1-6 in Case No. 23-cv-249-LM, along with a copy of this Order, will become part of the record in the consolidated case. Accordingly, the clerk's office is directed to file a copy of this Order in both cases, and to take the clerical steps necessary to consolidate Case No. 23-cv-249-LM into Case No. 23-cv-241-JL, so that only Case No. 23-cv-241-JL survives the consolidation. Then the clerk's office shall close Case No. 23-cv-249-LM administratively. All filings pertinent to this matter, going forward, must be marked with the docket number for the surviving case only, Case No. 23-cv-241-JL. So Ordered by US Magistrate Judge Andrea K Johnstone.(vln) [Transferred from nhd on 4/23/2024.] |
| Filing 1 Petition for Writ of Habeas Corpus under 28 USC 2241 ( Filing fee $ 5 receipt number 626) filed by Delroy Horace McPherson. (Attachments: #1 Exhibit 1 - Notice of Revocation Release, #2 Exhibit 2 - Alien Informal Interview)(mc) [Transferred from nhd on 4/23/2024.] |
| NOTICE of Filing - Case filed under 28 U.S.C. 2241. A copy of the petition has been electronically sent via ECF to your office. No further action is required by the United States Attorney unless directed by the presiding judge. (mc) [Transferred from nhd on 4/23/2024.] |
| NOTICE. This case has been designated for Electronic Case Filing. All further submissions shall be filed in compliance with the Administrative Procedures for Electronic Case Filing. Pro se litigants are not required to file electronically and may continue to file documents in paper format. Persons filing electronically are strongly encouraged to complete the interactive training modules available on the courts website. To access these modules, click #HERE. (mc) [Transferred from nhd on 4/23/2024.] |
| Case assigned to Judge Joseph N. Laplante. The case designation is: 1:23-cv-241-JL. Please show this number with the judge designation on all future pleadings. (mc) [Transferred from nhd on 4/23/2024.] |
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