Ricketts v. Heron et al

Filing 29

ORDER denying 14 Motion to Expedite; denying 26 Motion to Compel; granting 27 Motion for Extension of Time to File Reply to 6/4/2010.. Signed by Hon. H. Kenneth Schroeder, Jr on 5/5/2010. (KER)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

JUNIOR M. RICKETTS, A#027-024-434 P e titio n e r, v. M AR T IN HERON, Facilities Director, et al., R e s p o n d e n ts . 09-CV-0288A(Sr)

DECISION AND ORDER T h is matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon d is p o s itiv e motions. Dkt. #28.

P la in tiff commenced this action pro se, pursuant to 28 U.S.C. § 2241, c h a lle n g in g his detention by the Department of Homeland Security, Bureau of Im m ig ra tio n and Custom Enforcement ("ICE"), since September 5, 2006. Dkt. #1.

Currently before the Court is petitioner's motion to expedite the Court's d e te rm in a tio n of his petition for writ of habeas corpus (Dkt. #14); motion to compel d is c o v e ry (Dkt. #26); and motion for an extension of time to reply to respondents' s u p p le m e n ta l opposition to his petition for writ of heabeas corpus until the motion to c o m p e l has been resolved. Dkt. #27. For the following reasons, the motion to expedite

is denied; the motion to compel is denied; and the motion for an extension of time is g r a n te d .

BACKGROUND B y Decision and Order entered January 13, 2009, the Court determined th a t petitioner's continued detention was permissible because petitioner had obstructed e ffo rts to effect his removal to Jamaica. 07-CV-138 at Dkt. #23. Specifically, the Court d e te rm in e d that petitioner has obstructed Respondent's attempts to effectuate h is removal by directing the Consulate General of Jamaica n o t to issue travel documents to him and advising the C o n s u la te General of Jamaica that he is not a citizen of J a m a ic a , causing Jamaica to investigate petitioner's n a tio n a lity before deciding whether to issue travel documents fo r petitioner. Petitioner has repeatedly failed to cooperate w ith Respondent's requests to assist in obtaining travel d o c u m e n ts and continues to reference fraudulent documents in support of his claim to United States citizenship, prompting J a m a ic a to advise Respondent that Jamaica will not issue a tra v e l document until petitioner's identity is confirmed. Dkt. #23, pp.11-12 (internal citations omitted). The Court of Appeals for the Second C irc u it denied petitioner's motions for a certificate of appealability and in forma pauperis s ta tu s and dismissed petitioner's appeal by Order entered April 13, 2009.

By letter dated December 21, 2009, the Deputy Consul General of Jamaica a d v is e d that T h e Jamaican immigration authorities have now confirmed th a t a verification exercise has been completed in your case a n d that you have been confirmed as an American. They a d v is e that you should remain in the United States of America

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and your relatives contacted to authenticate your claim to U n ite d States citizenship. Note was taken of the fact that th e US Embassy in Jamaica "also investigated and found th a t the subject was indeed an American citizen, born P a u l Milton Miles but changed his name because of his r e l i g io n . " It was observed that you were repatriated to the United States in February 2003 after you were provided with a United S ta te s passport by the US Embassy. D k t. #15, p.13 (emphasis in original).

Respondent argues that this decision is based upon petitioner's provision of fa ls e information to the Jamaican Consulate. Dkt. #18, ¶ 38. Specifically, Respondent a rg u e s that petitioner fraudulently assumed the identity of United States citizen Paul M ilto n Miles, who was born on August 31, 1964, in Brooklyn, New York following his a d m is s io n into the United States as a nonimmigrant in 1982. Dkt. #18, ¶ 40. Subsequently, petitioner applied for and was issued a United States passport u n d e r the identity of Paul Milton Miles. Dkt. #18, ¶¶ 41-42. Thereafter, petitioner legally c h a n g e d Paul Milton Miles' name to Junior Mohammed Ricketts. Dkt. #18, ¶ 43. The U n ite d States Department of State amended the passport to reflect the name change on A u g u s t 23, 1984. Dkt. #18, ¶ 44.

In November of 1990, petitioner began employment as an eligibility s p e c ia lis t with the New York City Human Resources Administration. Dkt. #18, ¶ 45. An O ffic e of Inspector General investigation conducted by the New York City Human R e s o u rc e s Administration discovered that petitioner had changed post office box

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addresses assigned to homeless clients in the W e lfa re Management System database to h is own address so that he received the checks issued to clients, and that petitioner had a ls o deposited checks intended for AIDS patients into his own bank account. Dkt. #18, ¶ 4 6 . The investigation determined that petitioner had embezzed $111,052.38 between D e c e m b e r 1990 and June 1992. Dkt. #18, ¶ 47.

On October 16, 1992, the Office of Inspector General executed a federal s e a rc h warrant at petitioner's residence and discovered Jamaican passport number 5 6 5 2 2 7 issued June 24, 1983 by the Jamaican Consulate in New York in the name of J u n io r Nathaniel Ricketts, bearing petitioner's photo, and noting that Junior Nathaniel R ic k e tts previously traveled on a Jamaican Passport No. 114877. Dkt. #18, ¶ 49. Jamaican Passport No. 114877 was issued to Junior Nathaniel Rickets, born October 12, 1 9 5 5 , in St. Andrew, Jamaica. Dkt. #18, ¶ 51.

The Office of Inspector General interviewed the mother of Paul Milton M ile s , Lizzie Mae Page of Brooklyn, New York. Dkt. #18, ¶ 52. Ms. Page informed the O ffic e of Inspector General that she had not had contact with her son since 1986 and d e n ie d that a photograph of petitioner was her son. Dkt. #18, ¶ 52. The Office of In s p e c to r General also obtained an arrest photo of Paul Milton Miles which does not d e p ic t petitioner. Dkt. #18, ¶ 52.

Contrary to the letter from the Jamaican Consulate, the American Embassy in Kingston Jamaica denies issuing petitioner a travel document in 2003. Dkt. #18, ¶ 65.

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DISCUSSION AND ANALYSIS P e titio n e r's discovery demands seek: 1 . a copy of the letter addressed to the Head of the B u ffa lo Federal Detention Facility from Deputy Consul G e n e ra l Tracy Blackwood on December 21, 2009 re g a rd in g the result of the Jamaican investigation of p e titio n e r's identity; 2 . a ll I-94 documents relating to the use of Junior N a th a n ie l Ricketts' Jamaican passport number 565227 b e tw e e n May 1, 1980 and January 1, 1983; 3 . th e I-94 document indicating the place, time and p a s s p o rt number used to enter the United States as a n o n im m ig ra n t between October 1, 1982 and D e c e m b e r 31, 1982; 4 . th e December 28, 1992 statement of Lizzie Page and d o c u m e n ts used to identify her as the mother of Paul M ilto n Milton Miles; and 5 . a copy of the New York State Police records and arrest p h o to of Paul Milton Miles. Dkt. #26.

"A habeas petitioner, unlike the usual civil litigant in federal court, is not e n title d to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 9 0 4 (1997). The "broad discovery provisions" of the Federal Rules of Civil Procedure are n o t applicable in habeas proceedings. Harris v. Nelson, 394 U.S. 286, 295 (1969). Rather, discovery in habeas proceedings is governed by the following: A party shall be entitled to invoke the processes of discovery a v a ila b le under the Federal Rules of Civil Procedure if, and to th e extent that, the judge in the exercise of his discretion and fo r good cause shown grants leave to do so, but not o t h e r w is e .

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Bracy, 520 U.S. at 904. "Good cause" exists where "specific allegations before the court s h o w reason to believe that the petitioner may, if the facts are fully developed, be able to d e m o n s tra te that he is . . . entitled to relief." Id. at 908-09 (internal quotation omitted).

In assessing whether a habeas petitioner is entitled to discovery, courts m u s t first identify the "essential elements" of the petitioner's claim. Id. In the instant case, it is important to note that this Court lacks jurisdiction over any claim th a t petitioner is a United States citizen. Such a claim was required to be brought before th e Court of Appeals for the judicial circuit in which the Immigration Judge completed the p ro c e e d in g s within 30 days of the final order of removal. 8 U.S.C. § 1252 (b); see Tam v. D e p 't of Homeland Security, No. 05-CV-473, 2006 W L 839425, at *2 (W .D .N .Y. Mar. 28, 2 0 0 6 )("re v ie w of nationality claims in the context of removal orders must occur, in the first in s ta n c e , in the court of appeals.").

Petitioner defaulted his appeal for judicial review of the Immigration Judge's d e te rm in a tio n that he was not a United States citizen. See Dkt. #00-3270 at h ttp s ://e c f.c a 3 .u s c o u rts .g o v /c m e c f. Petitioner presented his claim of citizenship to the C o u rt of Appeals for the Third Circuit again in 2006, but the Court of Appeals rejected his c la im as untimely. 07-CV-138 at Dkt. #5, ¶10 & p.51. Petitioner subsequently moved to re o p e n his immigration removal proceedings before the Board of Immigration Appeals a n d appealed the denial of that motion to the Court of Appeals for the Third Circuit and th e United States Supreme Court, which denied certiorari. 07-CV-138 at Dkt. #20, ¶¶ 6-9 & Dkt. #20-2, pp.16-17. By Order entered February 9, 2010, the Court of Appeals for the

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Third Circuit denied petitioner's second motion to reinstate his petition for review. Dkt. # 2 4 , p.9. This Court cannot circumvent those determinations.

As a result, the only issue properly before this Court is the propriety of p e titio n e r's continued detention. See 28 U.S.C. § 2241(c)(3) (The writ of habeas corpus s h a ll not extend to a prisoner unless he is in custody in violation of the Constitution or la w s or treaties of the United States). However, with the exception of the first document re q u e s t, which seeks a document petitioner provided to the Court and, therefore, already p o s s e s s e s , petitioner's document demands seek documents relating to his claim of U n ite d States citizenship rather than the likelihood of his removal to Jamaica. As a result, th e motion to compel is denied.

CONCLUSION F o r the foregoing reasons, petitioner's motion to compel (Dkt. #26), is d e n ie d . Petitioner's motion for an extension of time to file a reply memorandum in further s u p p o rt of his petition (Dkt. #27), is granted. Petitioner shall file his reply no later than J u n e 4, 2010. Petitioner's motion to expedite (Dkt. #14), is denied inasmuch as p e titio n e r's motion to compel and motion for an extension of time has necessarily delayed re s o lu tio n of the merits of his petition.

Dated:

B u ffa lo , New York M a y 5, 2010 s/ H. Kenneth Schroeder, Jr. H. KENNETH SCHROEDER, JR. U n ite d States Magistrate Judge

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