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Harvey v. Holder

United States District Court, W.D. New York

December 8, 2014

KENNETH HARVEY, Petitioner,
v.
ERIC HOLDER, U.S. Attorney General; MICHAEL PHILLIPS, Facility Office Director of Buffalo Federal Detention Facility; TODD TRYON, Assistant Office Director of Buffalo Federal Detention Facility; and MR. LEISING, Assigned Deportation Officer, Respondents

Kenneth Harvey, Petitioner, Pro se, Batavia, NY.

For Eric Holder, U.S. Attorney General, Michael Phillips, Facility Office Director of Buffalo Detention Facility, Todd Tryon, Assistant Office Director of Buffalo Detention Facility, Mr. Leising, Assigned Deportation Officer, Respondents: Gail Y. Mitchell, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.

Page 319

DECISION AND ORDER

ELIZABETH K. WOLFORD, United States District Judge.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Kenneth Harvey (" Petitioner" ), commenced this habeas proceeding pursuant to 28 U.S.C. § 2241, alleging that his detention in administrative custody by the Department of Homeland Services Immigration and Customs Enforcement (" DHS/ICE" ) violated his federal constitutional rights under the Fifth and Fourteenth Amendments. (Dkt. 1 at 4).

Petitioner, a citizen of St. Kitts-Nevis, was admitted to the United States on or about January 1, 1991, as a lawful permanent resident. (Dkt. 4 at ¶ 3; Dkt. 4-1 at ¶ 5; Dkt. 4-2 at 22). On October 28, 1999, Petitioner was convicted in the Supreme Court, State of New York, New York County, of criminal sale of a controlled substance in the fifth degree, and was sentenced to a term of incarceration of 2.5 to 5 years. (Dkt. 4 at ¶ 4(a); Dkt. 4-1 at ¶ 6; Dkt. 4-2 at 19-21). On December 23, 1998, Petitioner was convicted in the County Court of the State of New York, County of Rockland, of criminal sale of a controlled substance in the second degree, and was sentenced to a term of incarceration of 6 years to life. (Dkt. 4 at ¶ 4(b); Dkt. 4-1 at ¶ 6; Dkt. 4-2 at 19-21). On December 23, 1998, Petitioner was convicted in the County Court of the State of New York, County of Rockland, of criminal possession of a weapon in the third degree, and was sentenced to a term of incarceration of 3 years. (Dkt. 4 at ¶ 4(c); Dkt. 4-1 at ¶ 6; Dkt. 4-2 at 19-21). On June 16, 2005, Petitioner was convicted in the County Court of the State of New York, County of Rockland, of criminal possession of a weapon in the third and fourth degrees, and was sentenced to terms of incarceration of 7 years and 1 year, respectively. (Dkt. 4 at ¶ 4(d); Dkt. 4-1 at ¶ 6; Dkt. 4-2 at 19-21).

On January 24, 2007, an immigration judge ordered Petitioner removed from the United States to the United Kingdom or in the alternative, to St. Kitts, West Indies. (Dkt. 4 at ¶ 7; Dkt. 4-1 at ¶ 9; Dkt. 4-2 at 24). Petitioner's appeal of the decision was denied by the Board of Immigration Appeals on June 12, 2007. (Dkt. 4 at ¶ 8; Dkt. 4-1 at ¶ 10; Dkt. 4-2 at 9-13).

Page 320

On June 20, 2014, Petitioner was received into ICE custody upon his release from the custody of the New York State Department of Corrections and Community Supervision. (Dkt. 4 at ¶ 9; Dkt. 4-1 at ¶ 11; Dkt. 4-2 at 24).

On August 4, 2014, Petitioner filed the instant habeas petition alleging that his continued administrative custody at DHS/ICE was in violation of his constitutional rights. (Dkt. 1). Specifically, Petitioner requested " his immediate release from DHS/ICE custody." (Dkt. 1 at 4).

On August 12, 2014, this Court ordered Respondents to file and serve an answer or motion to dismiss the petition, accompanied by a memorandum of law, within 45 days of service of the order. (Dkt. 2). The order was served on Respondents by certified mail on August 19, 2014. On October 1, 2014, Respondents timely filed their answer and memorandum in opposition to the petition. (Dkt. 4, 5). On October 7, 2014, Petitioner was released from administrative custody and was removed from the United States. (Dkt. 6 at ¶ 4; Dkt. 6-1 at 2). On October 8, 2014, Respondents filed a motion to dismiss the petition on the grounds of mootness. (Dkt. 6 at 1, 4).

For the following reasons, Petitioner's habeas petition is ...


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