United States District Court, W.D. New York
DR. CYRIL N. KENDALL, The World's Most Suigeneris Man, Petitioner,
DIRECTOR OF BUFFALO FEDERAL DETENTION FACILITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE), Respondent.
DECISION AND ORDER
ELIZABETH.A WOLFORD United States District Judge.
Dr. Cyril N. Kendall, is a civil immigration detainee
currently detained at the Buffalo Federal Detention Facility.
Subject to a final order of removal, Petitioner, in a rather
confusing and illogical pro se Petition, claims that
he is in U.S. Immigration and Customs Enforcement custody in
violation of his constitutional rights, as more particularly
described in the Petition, and seeks relief pursuant to 28
U.S.C. §2241. (Dkt. 1). Petitioner has also filed a
motion to proceed in forma pauperis (Dkt. 2), as
well as a motion seeking to stay his removal (Dkt. 3).
Motion for Stay of Removal
motion for a stay of his removal is denied on the basis that
this Court has no jurisdiction to entertain such a request.
See, e.g., Scott v. Napolitano, 618 F. Supp, 2d 186,
190 (E.D.N.Y. 2009); Al-Garidi v. Holder, No.
09-CV-6160 (DGL), 2009 WL 1439216, at *1 (W.D.N.Y. May 15,
2009); Morillo v. DHS & Bice Del Or., No.
06-CV-340 (NAM)(DEP), 2006 WL 1007645, at *1 (N.D.N.Y. April
to the extent the Petition can be liberally construed to
raise a challenge to the final order of removal, this Court
also lacks jurisdiction to entertain such a challenge.
See, e.g., De Ping Wang v. Dep't of Homeland
Sec, 484 F.3d 615, 615-16 (2d Cir. 2007); Aime v.
Dep 7 of Homeland Sec, No. 05-CV-0544 (RJA),
2005 WL 1971894, *1 (W.D.N.Y. Aug. 16, 2005). The appropriate
mechanism and forum for such a challenge is the filing of a
petition for review with the appropriate United States Court
of Appeals within 30 days after the date of the final order
of removal. See 8 U.S.C. § 1252(a)(5), (b)(1).
Motion To Proceed In Forma Pauperis
Court therefore has jurisdiction to review only
Petitioner's challenge to his current detention pending
removal. See Denis v. DHS/ICE of Buffalo, New York,
634 F.Supp.2d 338, 340 n.l (W.D.N.Y. 2009).
A court, justice or judge entertaining an application for a
writ of habeas corpus shall forthwith award the writ or issue
an order directing the respondent to show cause why the writ
should not be granted, unless it appears from the application
that the applicant or person detained is not entitled
28 U.S.C. § 2243. "Under this provision the
District Court has a duty to screen out a habeas corpus
petition which should be dismissed for lack of merit on its
face." Allen v. Perini, 424 F.2d 134, 141 (6th
Cir. 1970), cert, denied, 400 U.S. 906. "The
Advisory Committee Notes accompanying Rule 4 explain that
under [28 U.S.C] § 2243 it is the duty of the court to
screen out frivolous applications and eliminate the burden
that would be placed on the respondent by ordering an
unnecessary answer." Welch v. Mukasey, 589
F.Supp.2d 178, 180 (N.D.N.Y. 2008) (internal quotation marks
and citations omitted); see Garcia v. Dep't of
Homeland Sec, No. 10-CV-246 (MAT), 2010 WL 1630412, at
*1 (W.D.N.Y. Apr. 21, 2010) (dismissing a habeas petition
filed pursuant to 28 U.S.C. § 2241), aff'd,
422 F.App'x 7 (2d Cir. 2011); see also Riser v.
Johnson, 163 F.3d 326, 328 (5th Cir. 1999).
2(c) of the Rules Governing Section 2254 Cases in the United
States District Courts (the 'Habeas Rules'), requires
a petitioner to, '(1) specify all the grounds for relief
available to the petitioner; [and] (2) state the facts
supporting each ground[.]'" McNally v.
O'Flynn, No. 10-Civ-00921 (MAT), 2012 WL 3230439, at
*2 (W.D.N.Y. Aug. 6, 2012). "[A] habeas claim may be
summarily dismissed where the allegations are 'vague,
conclusory, or palpably incredible.'" Morgan v.
Lee, No. 11-Civ-0390 (MAT), 2012 WL 5336167, at *9
(W.D.N.Y. Oct. 26, 2012) (quoting Dory v. Comm'r of
Corr. of State of N.Y., 865 F.2d 44, 45 (2d
instant Petition's allegations are barely coherent.
Petitioner appears to claim that he is being held in
violation of his constitutional rights on the ground that his
prior conviction was unlawfully, fraudulently, or otherwise
improperly obtained. (Dkt. 1 at 6-7). It is not at all clear
as to why this could be the case, and Petitioner supports
this contention with mere conclusory assertions. In addition,
Petitioner also seems to contend that his conviction does not
exist, (Dkt. 1 at 4-5), and that "the People of the
State of New York" have "denied knowledge or
information sufficient to form a belief regarding his arrest,
indictment, and subsequent conviction (id. at 2).
Again, these assertions are unsupported by any coherent
factual allegations. Thus, the Court will deny
Petitioner's motion to proceed in forma
pauperis, without prejudice, and summarily dismiss the
Petition, without prejudice, due to its vagueness,
incoherence, and frivolous nature. See McNally, No.
10-Civ-00921 (MAT), 2012 WL 3230439, at *2; Morgan,
No. 11-Civ-0390 (MAT), 2012 WL 5336167, at *9; see also
Gonzalez v. Hollingsworth, No. CIV. 15-2993 (RBK), 2015
WL 4094613, at *2 (D.N.J. July 7, 2015). Petitioner will be
permitted to refile a habeas petition ...