LYTTLE v. The UNITED STATES OF AMERICA et al

Filing 48

MOTION to Dismiss by Dean Caputo, Dashanta Faucette, Robert Kendall. (Attachments: # 1 Exhibit) (Cutler, David)

EXHIBIT A

~

STATE OF NORTH CAROMNA
WILM]NGTON

Count;/

NEW H~&N OVER

File No
Co. Of Hearin9

07CR 62451

Seat Of Court

In The General Court Of Justice
District ~ Superior Court Division

(NOTE : There must be a separate revooedonjudgment for each sentence whic~ is activated, but one
revecatJon judgmenHs sufficient where the ofidnd sentence was imposed r~q offenses consecrated for
purposes of judgment This form s to be u~ Jn conjunction wi~ AOC-CR-5~.)

STATE VERSUS

JUDGMENT AND COMMITMENT
UPON REVOCATION OF PROBATION OR

Defendant

MARK D LYTTLE

]977

MALE

H
A~omey For State

! A~omey Far Defendant At Revocation Hearing

i

D pu~ ~ G }~

ELECTION TO SERVE SENTENCE o [’v!}SDEI~EANOR(S)
(STRUCTURED SENTENCING)
G.S. 15A-1341(c), 15A-1344, !5A-1345

NoHndigent

k~omey

The defendant was p~aced on probation pursuant to the fo~ow~ng Judgment Suspend;rig Senten~:
Date Of Judgment Suspending Sentence

~ 02/2!/2008
County of Origin
File No.{s)
~
07CR 62451
}

Off.

No. ~

Name Of County Of Origin

Name Of Original So,tenting Judge

, MEL~NDA CROUCH
Offense Description

~ NEW H,&NOVER
Offense Date

G,S, No,

09i25/2007

i4-33C2

ASSAULT ON A FE vL&LE

7CL"
AJ

~ In the odg~na~ Judgment Suspend{rig Senten~, the Cou~ determined, pursuant to
~ G.S. 15A-1340.20, the number of prior convictions to be 5+
LEVEL: ~ t {0) ~ 1~ {1~} ~ ti1 {5+)
i ~ ~n the odgma[ Judgment Suspending Sentence, the CouG sentenced the defendant:
~ 1. pursuant to a p~ea arrangement as to senten~ under AR~c~e 58 of G.S. Chapter 15A
~ 2~ based upon a finding of:
~ (a) enhanced punlshment from a C~ass 2 or C~ass 3 misdemeanor to a Class 1 m~sdemeanor.
~ G.S. 90-95(e)(4) (drugs). ~ G.S. I4-3(c) (hate cdme).
~ (b) enhanced punishment from a requ[red suspended sentence to a C~ass 2 misdemeanor. G.S 90-95(e)(7).
CONCLUSION AND ORDER
’ ~ Based upon the F~nd~ngs of Fact set out on the reverse s;de~ the CouR concludes that the defendant has violated a va~d condition of
probate?0 upon wMch the execut on of the active se~ten~ was suspended, and that cont~nuat[o% rood ficat~on
cr minal#ontempt is not appropriate, and the CouR ORDERS that the defendant’s probation be revoked, that the suspended senten~
be a~[~ated and the defendant be modsoned:
#¢~en~e~:,>smmigedbe~omJanua~7 I, !99D The de~endant has tree}y, vo untar~ y and understand ng y e{ecte~ to :aenve the ae endont s
L~ ~Os~nd’~d sen~ence of imprisonment n ;~eu of the rema nder of the defendant’s prober on. Therefore. by v~£ue of G.S 15A-1341(c)
G~d~ ORDERS that the suspended sente~sce be act;rated and the defendant be mpr soned:
~ a:£er@
~O :b ..........

~ ~J0

days ~n the custody of the:

’The ddeedant she ~ be g}ven credit for

-72

~ Shade of
i Other:

days spent n the confinement pdo~ to the date of th~s Judgment as a result of tMs charge(s).

~ T~e ~e~te ~ reposed above shah
~ Y~e ~4~gnce ~mposed above sha~ beg}n at the expiration of the sentence ~mposed ~n the case referen~d below:

AOC-CR-608, Rev. 3/07
@ 2007 Administrative Office of the Courts

COUnty

Me~enai oppos~Ie Unrr~d4ed squares s {o be disiege~-ded as surp usage
{Ova0

~cheok aft ~ha~ ~ap~y)
~ 1. The Clerk, ~nder G.S. 7A-304(di, ahail immediately diaburse any undisbursed monies pa~d by the d~fendant ~nde~ ~e ~dgment ~pend~ng
Senten~ as provided ~n that ~odgment.
~~ 2. The Co~ ~nd~ that the defendant
~ s ~ ~ not ~t~e fo~ p~ac~ment ~n a county ~ate~Le ~a~!wo~ ~e~e~se ~n~t. G.~. ~SA-~
~ 3. ~!,~th the consent of the defendant, wo~< re~ease ~s ordered and the defendant, after any required pro~ss~ng, sha~ be comm~ed to: [check (a) or
(~/ pdsonfad@/ w~Edn ~is ¢o~/:but of coun~i)
}~ (a)
(s~d~/bed ~nfi~ent ~d@/or sate~fte ja~::o~ ~ase unit w~tMn t~s ~u.~/.zout of
~ (b)
The sheriff, Board of Coun~ Commissioners or Depa~ment of Correction has consented to the commitment to the above described fac~}~ty, that
not w{[nin th~s county. G.S. t5A-1352(d).
The Cou~ Recommends:
~ 4. Assignment to a Substan~ Abuse Treatment Unit pursuant ¢o G.S. 15A-1351(h) (applies oniy to offenses commi~ed be~o,~ December i, 2003).
5. Psychiatric andlor psy~o~og~caJ counseling. ~ 6. Work re~ease.
7. Payment from wo¢~ re~ease earnings, ff app,{cable, the ~tems and amounts set out below.
Resdtu~on" All Pfior A~omey Fees :n ~5is Case { A~ome~/s Fee For ~is Proce~ing ! At~ Osier
~ Yo~a~ Amount Due
*See attadned "Rest{tudon Update Worksheet, Notice and F~nd~ngs (Revocation Or Te~na~on Of Probation)," AOC-CR-612, wh~d~ ~s ~nco@orated by
referent. NO TB: A~-CR-612 ~ust ~ com~et~ whenever R~mm~da#on NO. 7 abo,~ s check~. Eve~ ff R~mmen~do~ NO. 7 is not ch~k~, AOC~-612 mu~ be comp:et~ ~ EVER
CASE in whi~ the de~ndant was order~ hi the odgind judgment suspendng sen~nce, as a ~d~on of p~ad~q, to pay r~:tu~an ~n an amount :n excess of $250.~ to a V:~ R~gh~ A~
The Cou~ fu~her recommends:
SBNTENCE 5~OD[F]ED TO ~00 DAYS P£R J~JDGE
The Cou~ does not recommend: ~ !. RestJtuSon as a condition of work re}ease. ~ 2. Work re~ease.
After considering the record contained ~n the fi~es numbered above, together w~th the ev~den~ presented by the pa~es and the statements made on
behalf of the State and ~he defendant~ the Cou~ finds:
1. The defendant ~s d~arged w~th ha~4ng v~o~ated spedfied conditions of the defendant’s probation as a~eged ~n:
~ a. the V~o~aeon RepoR(s) on fi~e here~n, which ~s ~nco~orated by reference.
~ b. the Noece of Hearing on V~o~at~on Of Unsupen4sed Probation on fi~e here~n, which ~s ~ncorporated by reference.
2. Upon due notice or waiver of notice (check a. orb.)
~ a. a hearing was he~d before the Coud and, by the evidence presented, the Cou~ ~s reasonably so,stied ~n ~ts d~s~et~on that the defendant
v~o~ated eaGh of the con@t~ons of the defendant’s probation as set fo~h below.
~ b. the defendant waived a v~o~at~on headng and adm~ed that the defendant v4o~ated each of the conditions of the defendant’s probation as set
fo~h below.
3. The condition{s) vb~ated and the facts of each ’donation are as set fo~h (check a. an~’orb.)
~ a. ~n paragraph(s)
in the V~o~at~on Repo~ or Notice dated
~ b. on the a~a~ed sheet.
4. Any a~egat~on of a ~4o~atbn stat~ ~n the V~o~a~on Repot, No~ce~ or othepMse, which ~s not set fo~h above ~s d~sm~ssed.
5. Eadn of the conditions v~o~ated as set fo~h above ~s va~d; the defendant v~o~ated each condition w~fiM~y and w~thout va~d excuse; and ea~ qo~at~on
occurred at a time ptior to the expiration or te~m nation of the pedod of ~he defendant’s
~ Each v~o~at~on ~s, ~n and of ~se~f, a su~dent bas~s upon which th~s Cou~ should revoke probation and a~vate the suspended sentence.’
6. The judgment for a~omey’s fees pre’dous~y entered ~n th~s ~se shaJ~ be docketed, ~f ~t has not a~ready ~en docketed.
~ 7. Beyond a reasonable doubt ~at before ~ne exp~ra~on of ~e period of probation, the State fi~ed a wfi~en motion w~th ~he c~e¢~ ~nd]caeng ~ts ~ntent to
conduc~ a revolt}on heating and the State made a reasonable effoR to not~t~ ~e probationer and to conduct the heating dudng the period of
probation set out ~n the judgment and commitment.

AWARD OF FEE TO COUNSEL FOR DEFEnDAnT
~

~ .......... .... ~"~’~= ~ * ~ ~

A hearing was he~d ~n open cou~ ~n ~he p~esence of the defendant at which tame a fee, ndu@ng expenses, was award~ ~he defendant’s appointed
counse~ or assigned public defender ~n th~s revocation proceeding.

QRDER OF CQ~I~T~IE~TIAPPEAL E~TR~ES ....... ~~t ~s ORDERED that the Clerk de]~ver ~w~ oe~fied cop~es of th~s ~udgment and Commitment to the shetiff or other qualified o~cer and that ~e o~qcer
cause the defendant to De delivered w~th these cop~es to the custody of the agency named on the reverse to sepve ~e sestence ~mposed o~ unt~ the
defendant sha~ have oomp~ed w~th the cond~t~oas of re~ease pending appeal
[~ The defsnda ~ gb:es no~ce of appea~ from the J~dgment of the @stricl coud te t~e superior cou~
~ The cuffed( prettia~ re~ease o~der ~s modified as follows:
~ The defendant g~ves aot~ce of appea~ from the Judgment of the super o~ co~ te the appellate d qs~on. Appea~ entries a~d a~y co~d t~ons of post
cony croon ~e~ease are set fo~h on fo~m AOC-CR-350.

Date Appea D~sm]ssed

Da~e ’vgftbdrawa Of Appeal Fi:ed

Date Appe: ate

it is ORDERED that this Judgment be executed, t s FURTHER ORDERED that the sheriff arest the defendanL ~f neoessaeZ~ and ~ecomm t the
defendant to the custody of the o~c~a~ named ~n ~h~s Judgment and f!~m~sh that offida~ b:~o ce~fied cop~es of th~s Judgment
authority for the commitment and detention of the defendant.

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

EXHIBIT B

/’,_3

EXHIBIT C

o+~’j ~ £

F ii ~ :-~
iG=-= >~

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

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 F

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 G

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 H

425 { Sm~et, NW
W~shing~.om DC 20536

U.S. Immigration
and Customs
En.gorcement

MEMORANDUM FOR:
FROM:

SUB,}ECT:

SupersedMg Ouid~mce (m Reporting and Investigating Claims

Ira. Memorandu r~ st~nersedes the gui&mce issued o.~ July !8, 2008, entitled ’%uperseding
(kAdance or~ Reporting a~d investigation of Claims ~0 Unhed S~a~es Cffizenship."
’lhe ()~fffce of Detention a~d Removal Operations (DRO) is rcsponsiNe ~r the enibrcement of
immigra{ion taws. b~ the course oF exercising authorKy m~der section 287 of the
Immigration and Nafionaihy Act, S U,S,C. } 1357, DRO o~ficers may encounter
who eitl~er assert claims to U.S. ckizenshlp or are unsure o£thdr ckizenshlp. Prior to making
waKant{ess arrest o[ such an }nd{vidual, DRO officers must ensure that sihe has reason
roguk~tion govemhsg rise admission, exclusion, expulsion or remora} o~aHeos.~ h4oreovec,

ckizenship~ sh~.ti immcdk4uI] ~oti!~},’ tic Field Of Nc,~ Director (FOD) hrough their chMn o1"
comma~d. The FOD shall make t~e appropqate ~otJScation to DRO headquarters. Each

Mso Babula v, i~S. 665 F.3d 293 (3d Cfr.
404 U.S. 864(

ww w,{ce.gov

Su~ect: Superseding Guidance on Reporting and investigating Claims to United States
Citizenship

encountered within their area of responsibilhy are appropriaeiy reported and investigated.
Interviews with detainees making claims to U,S. citizenship shall be conducted by either a
Supervisory immigration En~rceme~tt Age~t (SIEA) or Deportation Ok’icer, interviews
will be cecorded as sworn statements and b~clude all questions needed to comp!ete all fields on
a Form ~-2i3. In addition, the swor~ s*atement must include probative questions designed to
el~cit [nibrmatio~ sufficient ~o a~iow an i~vestigation of the person’s claim of" citizenship. This
investigation may include vital records scarchcs~ {hmiiy interviews, and other appropriate
hsvestisative measures.

li an affirmative claim to U.S. citizenship is nm,de by an individual prior to the commencemen~
oF removal proceedis~gs, the FOD will, in consultation with DRO headquarters and local O~ce
of Chief Counset (OCC), determine whed~er su£~cieut evidence exists to place that individual
into remova~ proceedings, [~’ an affirmative claim to U.S. citizenship ~s made by an individua[
f~!lowin~ the issuance of the Notice o£ Appear (NTA), each OCC, in consultation with the
[:OD, wFho where necessarF, should consult with HQ D[~O, will determine the mosi
appropriate cou~rse of action with respect to ~he disposition of the NTA and termination of the
case, while providing any necessary advice to the FOD as to c}sar?ges to the individuai’s
custody conditions,
FODs shail ensure that ail DRO emp!oyees h~ their area of responsibility (inctusfve of those
state, locat or tribal cross-trained 287(g) officers) who are under their control, understand and
adhere to ~his policy. Questions regarding this policy should be dh’ected to Christopher
Shanahan, Acting Assistant Director, E~fbrcement.