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Luitel v. United States

United States District Court, D. Nebraska

April 10, 2019

SUSIL SHRMA LUITEL, Petitioner,
v.
UNITED STATES OF AMERICA, and KURT FREITAG, Hall County Sheriff, Respondents.

          MEMORANDUM AND ORDER

          RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE

         This unusual matter is before the court on preliminary review of Petitioner Susil Shrma Luitel's Petition for Writ of Habeas Corpus (Filing No. 1) brought pursuant to 28 U.S.C. § 2241.[1] The purpose of this review is to determine whether Petitioner's claims, when liberally construed, are potentially cognizable in federal court. Condensed and summarized for clarity, Petitioner's claims are:

CLAIM ONE: The Petitioner is being unlawfully detained pursuant to an ICE detainer in the Hall County, Nebraska jail in violation of the Constitution and particularly the Fourth Amendment.
CLAIM TWO: Petitioner is being unlawfully detained in the Hall County, Nebraska jail pursuant to an ICE detainer[2] in violation of the alien removal statutes including 8 U.S.C.§ 1231 as he has not been promptly removed.[3]

         The court determines that these claims, when liberally construed, are potentially cognizable in federal court. However, the court cautions Petitioner that no determination has been made regarding the merits of these claims or any defenses to them or whether there are procedural bars that will prevent Petitioner from obtaining the relief sought.

         IT IS THEREFORE ORDERED that:

         1. Upon initial review of the habeas corpus petition (Filing No. 1), the court preliminarily determines that Petitioner's claims, as they are set forth in this Memorandum and Order, are potentially cognizable in federal court.

         2. The Clerk shall modify the docket sheet and show the above named Respondents as the only Respondents. The Clerk shall telephone the offices of the following attorneys and advise them of the filing of this case and the issuance of this Memorandum and Order. After that, the Clerk shall serve the petition (filing no. 1) and this document on the following lawyers by United States Mail:

Joseph P. Kelly United States Attorney District of Nebraska 1620 Dodge St. Ste. 1400 Omaha, NE 68102 (402) 661-3700
Martin Klein Hall County Attorney 231 S. Locust St. Grand Island, NE 68801 (308) 385-5150

         3. By May 28, 2019, Respondents must file motions for summary judgment or records in support of their answers. The clerk of the court is directed to set a pro se case management deadline in this case using the following text: May 28, 2019: deadline for Respondents to file records in support of answers or motions for summary judgment.

         4. If Respondents elect to file motions for summary judgment, the following procedures must be followed by Respondents and Petitioner:

A. The motions for summary judgment must be accompanied by separate briefs, submitted at the time the motions are filed.
B. The motions for summary judgment must be supported by any records that are necessary to support the motions. Those records must be contained in a separate filing entitled: “Designation of Records in Support of Motion for Summary Judgment.” C. Copies of the motions for summary judgment, the designations, including records, and Respondents' briefs must be served on Petitioner except that Respondents are only required to provide Petitioner with a copy of the specific pages of the records that are cited in Respondents' motions and briefs. In the event that the designations of the records are deemed insufficient by Petitioner or Petitioner needs additional records from the designations, Petitioner may ...

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