McLeary v. Herron et al

Filing 4

ORDER denying 3 Motion to Appoint Counsel ; granting 2 Motion for Leave to Proceed in forma pauperis. Respondent's answer and memorandum of law due or a motion to dismiss within 45 days from service of this order. Petitioner shall have 25 da ys upon receipt of answer (or motion to dismiss) to file a response. The Clerk of the Court is directed to serve a copy of the application and order to the Superintendent of the Buffalo Federal Detention Center; Buffalo Field Office Director of Deten tion & Removal Office, Immigration and Customs Enforcement Department of Homeland Security; Secretary of U.S. Department of Homeland Security (Washington, DC); Acting Director of Bureau of Immigration & Custom Enforcement (Washington, DC); Attorney G eneral of the United States (Washington, DC); U.S. Attorney for the Western District of NY (Buffalo); and, James W. Grable, District Counsel for the Department of Homeland Security by certified mail. The petitioner must forward a copy of all future papers and correspondence to the attorney appearing for the respondents. Signed by Hon. Michael A. Telesca on 2/18/10. (RE)

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-PS-O- UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK ASTON R. MCLEARY, A13221811, Petitioner, -vMARTIN D. HERRON, Director of Buffalo Federal Detention Facility; MICHAEL T. PHILIPS, ICE Field Office Director and ERIC H. HOLDER, JR., Attorney General of the United States; Respondents. 10-CV-6068P ORDER Petitioner Aston R. McLeary, who is currently detained in the Buffalo Federal Detention Facility pursuant to an Immigration and Customs Enforcement detainer, and alleges that he has not been granted an individualized detention hearing as required by law, having been detained since August 21, 2008, seeks relief pursuant to 28 U.S.C. 2241 as more fully set forth in the petition. pauperis. Petitioner also seeks permission to proceed in forma Petitioner seeks appointment of counsel. IT HEREBY IS ORDERED as follows: 1. granted. 2. Petitioner's request for appointment of counsel is denied without prejudice as premature. 3. Within 45 days of the service of this order, respondent Petitioner's request to proceed as a poor person is shall file and serve an answer to the application with the Clerk of Court which shall respond to the allegations of the application and shall state, as to every ground raised by the petitioner, whether the petitioner has exhausted administrative remedies. If any ground is alleged not to have been exhausted, respondent shall identify such ground and expressly state whether it waives the petitioner's requirement to exhaust. Alternatively, in the appropriate case, respondent may file a motion to dismiss the application, accompanied by pertinent exhibits which demonstrate that an answer to the application is unnecessary, by no later than 45 days from service of this order. Respondent also shall file and serve by the above date a memorandum of law with the Clerk of Court addressing each of the issues raised in the petition and including citations of relevant supporting authority. Respondent is directed to accompany all citations to sections of the Immigration and Naturalization Act with reference to the appropriate sections of 8 U.S.C. Petitioner shall have 25 days upon receipt of the answer to file a written response to the answer and memorandum of law (or motion to dismiss). 4. The Clerk of Court shall serve a copy of the petition, together with a copy of this order, by certified mail, upon the following: Facilities Director, Buffalo Federal Detention Center, 4250 Federal Drive, Batavia, New York 14020; Buffalo Field Office Director, Detention & Removal Office, Immigration and Customs Enforcement Department of Homeland Security, 130 Delaware Avenue, Buffalo, NY 14202; Office of General Counsel, Department of Homeland Security, Washington, D.C. 20528; Acting Director, Bureau of Immigration and Custom Enforcement, 425 I Street, NW Washington, DC 20536; Attorney General of the United States, Main Justice Building, 10th and Constitution Avenues N.W., Washington, DC 20530; United States Attorney for the Western District of New York, 138 Delaware Avenue, Buffalo, New York 14202; James W. Grable, District Counsel for the Department of Homeland Security, 130 Delaware Avenue, Room 203, Buffalo, New York 14202. THE PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR THE RESPONDENT. SO ORDERED. S/ MICHAEL A. TELESCA MICHAEL A. TELESCA United States District Judge Dated: February 18, 2010 Rochester, New York

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