LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 47

MOTION to Dismiss by The UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit) (Whitman, James)

EXHIBIT A

/’,_3

EXHIBIT B

EXHIBIT C

Warrant for Arrest of Alien

FINS #: 1080~74611

~eNo,
Event No: RDU0809000041
Da~e: September 5, 2008

To any officer de~~ated aathor~%" p~rsaaat to Section 287 Of the ~mm~grat~oa and Nationally
Act:
From evidence a~bmb~ed to me, it appears that:
Mark Daniel L’fTTLE
(gull name ofatiea)
U~kno~a Place

an alien who entered the United Sta~es a~ or near
(Date)

on

is wi~ i~ count~¢ in violation of the i~mi~ation taws and is

therefore liable to being taken into custody as aur~horized by section 236 of the Irmnigation and
Nationality Act.
By virtue of the auuhority vested in me by the irnr.igration laws of the United States and r/,~e

SDDO

Served by me at
o~.
~~
at
t cer~fi~" i’~a~ foi!nwing such ser,,’ic% ~r~e aiien was advised concerning his or her fight to counsel and was
~amished a copy of this warrant.

EXHIBIT D

Notice of Intent to ~ss~e ~ Fina~ Administrative Remora{ Order

Pursuant to section 238(b) of the ~mmigretien and Nationati,~ Act (Act) as amended, 8 UISC,
Secudty (Department) has determined that you are amenable to administrative removal proceedin
fol~o,Mng a~egations:

determination is based on the

You are not a dtJzen or nafionat of the United State&
You are a native of
You entered the United States (at)(near)

and a dfize~
1980

At that time you entered ~’~!~o~
You are not lawfully admitted for permanent residence,

deferral of remov!’wou}d prohibA your return to a country or countries where you wouid be persecuted or tenured but wou~d ~ot p~event
your remova~
You have th~ ~ t~ ~ma~n ~n the Unted States for 14 ~endar days so ~at you may fi~e a pc%on for rev~w of th~s order to the
appro£da~U.{ ~Y~t 0£~ of Appea~s as provided for
the U
~nt~ S~ates so ~ong as that pe~on ~s ~ed ~ith the approp~ate U,S. C~rcu~t Cou~ of Appea~s w~th~n 30

Form !-851 (Rev. 08/01/07)

served this Notice of }ntent. I have determined that the person served with th:s document is the ind:vidual named on the other

~ I explained and/or seP~ed this Notice of ~ntent to the atien i~~-~zs~

language.

~ I Wish to Contest andlor to Request W~thholding of Remova~
co~test my depoRabitity because: (ANach any suppling documen~a#on)
am a c~tize~ or national of the United States.
am a }awq~Jt perma#e~t resident of the United States.
was not convicted of the cdminal offense described in aliegaflo~ number 6 above.
am attach!~g do¢aments in suppoR of my rebuttal and re<Iuest for further rev}ew.
request withholding or de~rra~ of removal to

.{Name of Country or Countries]:

~ Under section 241(b)(3) of the Act, 8 U.S.C, I231(b)(3), because ] fear persecution on account of my race, religion, natio~a ity,
membership ~n a patJcu~ar soda/group, or po%ca~ opinion in that country or those countries.
~ Under the Convention Against Torture, because / fear torture in t~hat country or those countries.

~ Do Not Wish to Contest ands/or to Request ~thhold~ng of Remova~
I admit the al~egatioas and charge in this Notice of Intent, I admit that I am reportable and 8ckno’~,4edge that I am not etigib,~ for any
form of reiief from removal, I waive my ~ight to rebut and co,test the above charges. I do not wish to request v4thho}ding or deferral of
removal I v~ish to be removed to

understand tha~ ! have the dght to remain in the United States for 14 calendar days in order to app!y ~orjudicia! review, l do net wish

RBTUR.N TH~8 FOR~ TO:
Department Of Home,and Security

ATTENTION:

Form 1-85I (Rev. 08/01/07)

EXHIBIT E

Pursuant to the authority contained in section 2.36 of the Immigration and Nationality Act and par~ 236 of title 8,
Code of FederaI Regulations, I have determined that pending a final determination by the immigration judge in
your case, and in the event you are ordered removed from the United States, until you are taken into custedy for
removal, you shal! be:
g3 detained in the custody of the Department of Homeland Security.
released under bond in the amount of
released on your own recognizance.
[3 You may request a review of this determination by an immigra~
udgeo
~ou may not request a review of this determination by an im~g ~dge because the Immigration and
Nationality Act prohibits your release from custody. a~:i
(

SDD0
(Tkie of ~a~ho~z~ officer)
CA~Y ~ NC

[3Ido ~ do not request a redeterminafion of this custcdy decision by an immigration judge.

RESULT OF CUSTODY REDETER~ATION
On

~, custody status!conditions for release were reconsidered by:

[3 Immigration Judge

[3 DHS OfficiaI

~ Board of~mmigration Appeats

The resuIts of the redetermination/reconsiderationare:
C3 No change o Original determination upheld. [3 Reiease o Order of Recognizance
~1 Detain in cust~y of this Service.
[3 Release o Persona1 Recognizance
C~ Bond amount reset to
C? Or/net:

EXHIBIT F

U.$o Deparlment of Homeland

Securi~

immigration Detainer - Notice of Action
Sub~ect ZD : 27~859939
Event Nc~ RDU0809000041
1=ileNo
Dine: Septe~ber 5 ~ 2008
From: (O~ce ~dress)
RALEIGH!DDT~.NAM~ NC, SUB-OFFiCE
140 CEN~RNWEST COURT SUITE I00
~Y~ NC 27513

TO: (Name ~nd dde of insfitmion)
NoC. DE~T OF CORRECTIONS
COMBZh~ED RECORDS

831 N. MORGAN STo

Date of birth

1977

Nadona|ity: mm~co

Sex:

You are advised that the action ~oted below has been taken by the UoS. Department of Homeland Security
concerning the above-named inmate of your institution:
Investigation has been initiated to determine whether d~is person is subject to removal from the United States.
A Nodce to Appea~ or other charging document iMtioiing removal proceedings, a copy of which is attached, was served on
[~ A wmvmnt of arrest in remora1 proceedings, a copy of which is attached, was ser~’ed on
(Date)

[~ Deportation or removal from ~ne United SU~ h~ been ordered.
tt iS requ~t~ that you:
Please accept hhis notice as a detainer. This is for notification purposes o~ly m~d d~s not lim~ you~ disc~don in ~ny decMon
affecting <no offender’s c~si~ca~ioa, work, and ~u~e~ ~s~gnmen~, or o~ber ~reatmem which he or she wou~d o~ne~wise rec~ve.
Federal regMafions (8 CFR 2877) require d~at you detain the Mie~ for a p~r~od not ~o exceed 48 hours (exc!ud~ng S~r~ys,
Sunday’s and Federa~ holidays) to provide a~equa~e dine for DHS m ~sume custody of ~he alien. You may nodQ~ DHS by ca~ng
_ ~19-678~8807 during bus~ness hours or 802:872~020 a~erhours M an emergency.
Plebe complete and sign the bo~:om block ofe~e duplicate of~his form and remr~ i~ ~o ~his once. ~ A s~Sadd~ssed s~ped
envMope fs enclosed tbr your convenience. ~ Piease return a signed copy v~a facsimile ~o
Returs f&x ~o the a~esdon of aas~ ~@~.ss ....

£
(Area ~de and phone number)

(Name ofo~Nc~ h~nd ing ~se}

Nod~’ this o~ce in the event of the inm~e’s dentin or ~ans~er to ~,nother instivation.
~EA
(Ti~le of Immigration O~cer)

~adon O~cer)

Latest conviction charge:
Estimated reIease date:
Signa~re and title of officiak
Form 1-247 (Revo

Alien’s Name

I

File Number

D~e
~ept~mber 5, 2008

Event No:

OTHER ALIASES KNOWN BY :
LITTLE 0 M~iRK DANIEL

Signature

2
Form 1-831 Coa~iauatioa Page (Rev, 0g~01t07)

2
of

Pages

EXHIBIT G

STATE OF NORTH CAROUNA
NEW H~"q OVER

County

Co, Of Headng
~ File No.

’~qLM-dNGTON

Seat Of Court

STATE VERSUS
MA.P~K D LYTTLE
race

i

H

ELECTION TO SERVE SENTENCE - ~]|SDE~EANOR(S)
(STRUCTURED SENTENCING)

1 DOE

Sex

MALE

1977

Agemey For State

DP, AUGHN

In The General Court Of Justice
District ~-q Superior Court Division

JUDGMENT AND COIVI~tlITMENT
UPON REVOCATION OF PROBATION OR

Defendant

t

07CR 6245 !

Not lndi~nt

G.S. 15A-t34t(c), i5A-t344, 15A-1345
I Attorney For Defendant At Revocation Hearing

A~omey

The defendant was placed on probation pursuant to the fo!lowing Judgment Suspending Sentence:
Date Of Judgment Suspending Sentence
Name Of Origina~ Sentendng Judge
i Name Of Count! Of Oddn
MEL12"4~A CROUCH
02/21/2008
~ NEW ~&NOVER
County of Origin
Off. {
Offense Descdpt~or~
Offense Date
No. ,
F~e No,{s)
I
ASSAULT ON A FEMu-qLE
09/2512007
07CR 62451

the original Judgment Suspending Sentence, the Court determined, pursuant to
G,S. 15A-1340.20, the number of prior conv}ctions to be
5+

GoSo No.
14-33C2

LEVEL: ~ ! (0) ~ H {14) ~ HI (5+}

the originat Judgment Suspending Sentence,
the Court. sentenced the defendant:
~ 1. pursuant to a ptea arrangement as to sentence under Articte 58 of G.S, Chapter t5A.
~ 2. based upon a finding of:
~ (a} enhanced punishment from a Ctass 2 or Class 3 misdemeanor to a Class ! misdemeanor.
~ G.S. 90-95(e)(4) (drugs). ~ G.S. t4-3(c) (hate crime).

Based upon the Findings of Fact set out on the reverse side, the Court. concludes that the defendant has violated a valid cond tion of
probatiAq upon which the execution of the active sentence was suspended, and that continuat~or~, modification or specia~ probation or
cfimin~bontempt is not appropriate, and the Court ORDERS that the defendant’s probation be revoked, that the suspended sentence
be q.~’~ed~ and the defendant be ~mpr~soned:
~e~m~’ed before Januaoz 1, !997) The defendant has free~y, vo~unta~ ~y and understandingly e~ected to sewe the de endant~s
SU~n~e~ se,~t~n~ of,myrsonmen..~ ~eu o ~he r~ma,nde, ot the ~fendant s probateD, T erefo,~
~ G#G~ ORDERS that the suspended sentence be activated and the defendant be ~mpfiso ed:
100
s~

N.c. Dec
days ~n the custody of the:

d~te~}~a~ ~ g~n cred~ for

22

~ Shedff of
~ Other:

days spent ~n the confinement pdor to the date of

~e @0Zg~ce imposed above sha~ be~;~ at the expiration of a~ sentences which the defendant
above sha~{ begin at the expiration of the sentence imposed ~n the ~se re~erenced below:

AOC-CR--608, Rev, 3107
2007 Administrative Office of the Courts

(check el1 that apply)
~ 1. The Cted.q under G.S. 7A-304(d), shaft immediately disburse any undisbursed monies paid by the defendant under the Judgment Suspending
Sentence as provided in that Judgment.
~ 2, The Court finds that the defendant ~ is ~ is not suitable for placement in a county satellite ja;~ork re~ease unit. G.S. 15A-1352(a).
~ 3. VMth the consent of the defendant, wo~ re}ease ~s ordered and the defendant, after any required pro~ssing, sha~ be ~mm~ed to:
~ (a)
(sp~h/pdso~ ~/~t~n ~is ~6wbut of
~ (b)
(sp~/~a~nfin~ent,~d~zorsate#ite~i~wo~~aseu~itwit#nt~s~u~//outo~coun~x~
The sheriff, Board of Counb/Commissioners or Depa~men~ of Co~ection has consented to the commitment to She above described fatuity, 5hat ~s
not wiShin this county. G.S. 15A-1352(d).
The Cou~ Recommends:
~ 4. Assignment to a Substan~ Abuse Treatment Unit pursuaR~ to G.S. 15A-1351 (h) (appdes only to affenses commi#~ be~o~ December 1, 2003).
~ 5. Psychiatric andtor psydqo{~ica~ counseling. ~ 6. WoA re~ease.
~ 7. Payment from wo~ re~ease earnings, ~f app~caNe, the ~tems and amounts set out below.
Resb~budon* At[ P~or A#omey Fees in ~is Case ~A#ome;/s F~ For ~is P,~e~ng ~ A~f O~eer
~ Tota~ Amount Due
¯ See a~ached ’Rest~tu~on Update WoAsheeL Notice and F~nd~ngs (Revo~on Or Ten,naboB Of Probation)," AOC-CR-612, which ~s ~nco~orat~ by
referent. NOTE: AO~R~I 2 must be ~m#et~ whenever R~o~endadoe No. 7 abo,,~ is ch~k~. Even ff R~om~ndadon No. 7 ~s not d~k~ AOC~.6! 2 mu~ be ~p~t~ ~n EV~ Y
CASE in wh~ the de~n~nt was orde~ ~n t,~e c@i#d ju~ment su&sendng sen~nce, as a ~nddon of p~a#~on, to pay resdtu~oh in an amount m ex~ss
The Cou~ fu~her recommends:
SENTENCE MODIFIED TO 100 DAYS PER ~JDGE NOECKER
The CouA ~oes not recommend: ~ 1. Restitution as a condition of work ~e~ease. ~ 2. Work re~ease.

F~NO[NGS
A~er considerin9 the record con~ai~e~ in the fi~es number~ above, ~ooe~her w~th ~he ev[~e~ presented by ~he pa~es and the statements made
behalf of the State and ~e defendant, the Cou~ 5nds:
I. The defendant ;s charged with having v~o~ated specified ~nd}t~ons of the defendant’s probation as NJeged
.~ a. the ’vqo~at~on RepoA(s) on fi~e here~n, wNch Js ~nco~orated by reference.
b. ~qe NoSce of Heating on ~o~atJon Qf UnsupePdsed Probation o~ fi~e here~n, which ~s incorporated by reference.
2. Upon due notice or waiver of notice (check a. orb.)
~ a. a hearing was heJd before the Cou~ and, by the ev~den~ presented, the Cou~ ~s reasonably sagsfied ~n ~ts d~scret~on that the defendant
v~o~ted~e~dq,of ~he conditions of the defendant’s probation as set fo~h
~ b. ~e ue[en~an[ waived a v~o~at~on heagng and admJ~ed ~at the defendant ’~o~ated each of the condJ6ons of the defendant’s probagon as set
fo~h below.
3. The condition(s) v~o~at~ and the facts of each ’donation are as set fo~h (check a. andorb.)
~ a. ~n paragraph(s)
~n the Wo~at~on RepoR or Not~ dated
~ b. on f~e a~ached sheet.
4. Any a~egat~on of a ’doJat~on stat~ ~n the V~o~at~on Repot, Not~, or othe#Mse, whJ~ ~s not set fo~h above }s d~smJssed,
5. EaCh of Lhe conditions ~o~a~ed as set foRh above ~s vN~d; ~he defendant violated each oond~t~on w~fiJ~y and w~thout vN~d excuse; and each ~io{adon
o~u~ed at a time pdor to the e~ratJo~ or term~nat~o~ of the pefi~ of the defendant’s
~ Each ’doJat~on ~s, ~n and of ~se~f, a su~c~ent bas~s upon which tNs Cou~ should revoke probation and a~Jvate 5he suspended sentence.
6. The judgment for a~omey’s fees pre,~ous}y entered ~n tNs ~se shN~ be docketed, ~f ~t has not a~ready ~en docketed.
~ 7, Beyond a reasonaNe doubt that before the exp~rat{on of the period of p~obat~on, ~he State Ned a wd~en motion w~th ~qe c}erk ~nd~cat~ng ~ts }ntent to
conduct a revoca~on headng and the State made a reasonaNe effoR to notJ~, ~qe proba~oner and to condu~ the heating during the pedod of
probation set out ~n the judgment a~d commitment,

AWARD QF FEE TQ COUNSEL FOR DEFENDANT
~

A headR~ was he~d ~ ope~ cou~ ~n the presen~ of the defendant at which t~me a fee, including expenses, was awapded the defendant’s appointed
cousse~ or assigned punic defender ~n tNs revocation proceeding.

ORDER OF CONN~TNBNTIAPPEAL ENTR~ES
Jt ~s ORDERED that the C~e~k deliver ~#~ ce~fied Gop~es of ins Judgment and Commitment to the sheriff or other quN~fied o~r and that the o~cer
cause ~he defendant to be delivered w~th these cop es to ~qe custody of the agency ~amed on the reverse to sewn bhe senten~ ~mposed o~ u~t}~ the
defendant shN~ have comp~ed w;th the conditions of ~e~ease pending appeal
~ The defenda~t gb~es ~o .... of appea~ from the Judgment of the d~stric~ co~ to flqe supedor cou~
~ The current pretda re ease order ~s modified as fo~ows:
~ The defendant g~ves notice of appeN from the J~dgme~t of the supedor couR to the appellate dMs~on. Appea en~des and any cond ~}o~s of post
co~v~c~on re~ease are set foRh on form AQC-CR-350.
Date

SIGNATURE OF JUDGE

i Name Of P,~s d~ng Judge (T~ce O~ P~fnt) Signature

08/14/2008

JEFF.52/~’4OECI£EP.

I

~t ~s ORDERED that tNs Judgme~ be executed. K s RURTHER ORDERED that the sheriff a~est the defendant, Jf ~ecessa~, and recomm}t ~qe
defen~an~ to ~he custody of the o~c~N named ~ th~s Judgment and #dm~sh that of~da~ two ce~fied oop~es of th~s J~dgment ahd Commitment as
authonty for ~he commitment and detention of the defendant.
~ Date

"Date
08/15/2008
AOC-CR-808, Side Two, Rev. 3/07
@ 20,97 Admi~istrative Office of Lhe CouPs

Date

SEAL

STATE OF NORTH CAROUNA
N£w HANOVSR

in The Generai Court Of Justice
District ~ Superior Court Division

County

STATE VERSUS

JUDGMENT/ORDER OR
OTHER DISPOSITION

Date Of Birth Sodal Secudty No. I

Race

I ~ Def. Found ~~Def. Waived IAtt°mey Far Defendant
I’~ Notlndigent A~omey I

PLEA
~ Gui;tyiResponsib~e ~ No Contest

Gui~ty!ResponsiNe

~ Guiity!Respons ble ~ No Contest

Guilty!Responsib}e

L_! Not Guilty/Not ResponsiNe

Not Gui}ty/Not Responsible

Name O# Pras also Judoe !’TYpe~ Or Print

_ APPEA_L ~ITR~E~ _
: i~Th:e defendant 9ves notice of appea~ from the judgment of the D}stsct CouR to the Superior Co~R.
~Tb~ ~ ~nt p;etdN re~ease order Js mad;fled as f@lows:

g~ves notice of appeal from the j~dgment of the Super or CouR to the Appellate D~v~s~on. Appea~ entdes
/ cond~8ons of post conv~ct~on re~ease are set foRh on ~orm AOC-CR-350.
i Signature Of Presidng Judge

AOC-CR-305, Rev. 7/95
997 Adminid[rative Office of the Cou~ts

Orig~na~- F~e