Kelly v. Farquharson
| Decision Date | 03 April 2003 |
| Docket Number | No. CIV.A. 02-10884-PBS.,CIV.A. 02-10884-PBS. |
| Citation | 256 F.Supp.2d 93 |
| Parties | Liam Brent KELLY, Petitioner, v. Steven J. FARQUHARSON; Immigration and Naturalization Service; Sheriff Thomas Hudson; and Bristol County Jail, Respondents. |
| Court | U.S. District Court — District of Massachusetts |
Liam Brent Kelly, [Pro se], Bristol County House of Correction, New Bedford, Lenore Glaser, Law Office of Lenore Glaser, Boston, for Liam Brent Kelly, Petitioner.
Frank Crowley, Immigration and Naturalization Service, Jeremy M. Sternberg, United States Attorney's Office, John Joseph Moakley Federal Courthouse, Boston, for Stephen Farquharson, Respondent.
Habeas petitioner Liam Brent Kelly, a non-criminal detainee from Canada, challenges the order of removal issued by the Immigration and Naturalization Service ("INS") on the grounds: (1) that he was denied his constitutional right of access to the Board of Immigration Appeals ("BIA") and the courts; and (2) that prior to the 1996 amendments to the Immigration and Nationality Act, he would have been eligible for a waiver of deportation and that the amendments have been unconstitutionally retroactively applied to him.
Complaining about his conditions of confinement, he asserts that the INS has moved him to different prisons multiple times, which interfered with his ability to receive court materials in a timely way, that the INS has lost his legal papers, and that he was held virtually naked in unsanitary, cold, and difficult conditions, without access to a law library or legal materials. He points out that the multiple moves also interfered with his ability to meet conditions of bail set for voluntary departure. Accordingly, he has stayed in custody although he has never been convicted of a crime.
After an evidentiary hearing and review of the post-hearing submissions, I find that some (not all) of petitioner's allegations regarding his conditions of confinement are time, but that these conditions did not interfere in a material way with his access to the BIA or the courts. Moreover, I conclude that he has not been impermissibly harmed by any retroactive effect of the recent legislative amendments. This action shall be transferred to the United States Court of Appeals for the First Circuit. The stay of removal entered by this Court on December 16, 2002 will be dissolved 30 days after the date of this Memorandum and Order.
In the original petition, pursuant to 28 U.S.C. § 2241, Mr. Kelly complained about his transfers from various state correctional facilities and his purported lack of access to mail and to the courts. Because the habeas petition appeared to challenge the conditions of his confinement rather than the fact or duration of his confinement, I directed Mr. Kelly to demonstrate good cause why his petition should not be dismissed. Docket No. 2 (July 29, 2002 Memorandum and Order).
On December 2, 2002, Mr. Kelly sought an emergency stay of deportation.1 See Docket No. 14. In his filing, consisting of 108 double-sided pages of rambling handwritten text, Kelly appeared to argue that his due process rights had been violated because the conditions of his confinement caused him to be unable to file a brief with the BIA in support of the administrative appeal of his removal order. He also contended that he had been denied access to the law library, could not send or receive mail, and had been placed naked in a "rubber room" with urine on the floor.
Because Kelly's Section 2241 habeas petition had not yet been served on the respondents,2 I directed that the petition be served on the INS respondents and scheduled a status hearing for December 16, 2002.
At the December hearing, Kelly, appearing pro se, stated that sometime in late July or early August while confined at Bristol County Jail ("BCJ"), he was held in unsanitary conditions, denied access to legal materials, and repeatedly was transferred among several facilities. Kelly again claimed that as a consequence of these events, he was unable to timely file a "brief with the BIA in support of his appeal of his removal order. He further claimed that when he was transferred to Plymouth County Correctional Facility ("PCCF") in late September 2002, he was held naked in a "rubber room" that had urine on the floor, that he had been denied the use of a mattress, that he was forced to sleep on a cold floor, and that his legal materials had been taken from him and never returned.
At the conclusion of the hearing, I granted Kelly a preliminary stay of deportation and scheduled an evidentiary hearing for January 2, 2003, to determine if the stay should be vacated or otherwise modified. I also appointed Lenore Glaser, Esq. as stand-by counsel for petitioner and informed petitioner that because his pleadings were difficult to read and comprehend, any future filing by him should be no longer than 10-pages in length.
On December 27, 2002, respondents submitted a motion to dismiss with numerous exhibits, contending that (1) this Court lacks the authority to enjoin petitioner's removal and lacks jurisdiction over this action; (2) that even if the Court had jurisdiction over this action, petitioner has failed to demonstrate by "clear and convincing" evidence that he was entitled to a stay of removal; (3) that petitioner had failed to state a colorable claim of legal error in his habeas petition; and (4) that the petition should be dismissed because it challenged only petitioner's conditions of confinement rather than the fact or duration of his confinement.
At the January 2, 2003 evidentiary hearing on the motion for preliminary relief, the Court heard the testimony of petitioner and two witnesses for the government. It became apparent that the core of petitioner's claims about his alleged inability to file a BIA brief centered around two related incidents: (1) a disciplinary sanction involving petitioner's "canteen"; and (2) a "hunger strike" embarked upon by petitioner as a result of disciplinary sanctions. The Court permitted both sides to file post-hearing submissions.
Kelly is a Canadian citizen who most recently entered the United States in 1996 with authorization to remain for 6-months as a non-immigrant visitor. INS records suggest he first entered in 1994 and worked as a carpenter. He returned to Canada in 1996 to get tools, and then reentered through Michigan. In July 2001, he was arrested on three charges in Somerville, Massachusetts, and the Somerville District Court sent him for mental observation to determine competency at Bridgewater State Mental Hospital. Kelly claims he was injected with antipsychotic medications, even though he has no mental illness. At the time he was arrested, he was homeless. The record does not contain the reason why Kelly was sent for mental observation, and Kelly hotly contests that he has any mental problems. He was never convicted of the Massachusetts charges, although he was convicted of a crime in Utah and sentenced to serve 120 days.
On August 13, 2001, Kelly was served with a detainer while at the hospital and was informed that he was subject to removal because he had remained in the United States for longer than 6-months. Kelly was taken into INS custody on December 5, 2001. His initial detention was at BCJ. The INS has switched him six times to different institutions, as outlined below.3
While Kelly was detained at BCJ on or about July 23, 2002, he was placed in administrative segregation for grabbing his "canteen" items off of a cart. While confined in administrative segregation, he claimed that he was strip-searched, that his cell at that facility had fecal matter on the floor, and that he had little or no access to legal materials or a law library. In late July, Kelly embarked on a hunger strike to protest this treatment and to obtain access to this Court.
Not surprisingly, the INS has a different view of Kelly's conduct. It claims that Kelly verbally abused guards, threw his meal tray, tried to bite a guard, encouraged inmates to "flood out" the toilets in their cells and was belligerent and insolent in following orders. BCJ officials assert that the disciplinary problems intensified in late July and early August 2002. Kelly's brief was due on August 16, 2002 while he was in the segregation unit. He did not have access to a law library until August 14,...
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...instead treating it as a civil rights claim); McCaffery v. Winn, 2005 WL 2994370 at *1 (D.Mass.2005) (same); Kelly v. Farquharson, 256 F.Supp.2d 93, 103 (D.Mass. 2003) (noting that habeas claims challenging confinement conditions are subject to dismissal); Kamara, 2 F.Supp.2d at 89(dismissi......