Opinion
2:21-cv-06668-SPG-MAA
08-02-2022
Miguel Antonio Garcia v. Felipe Martinez
Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings (In Chambers): Order to Show Cause Why the Petition Should Not be Granted Based on Respondent's Failure to File a Motion to Dismiss or an Answer
Background
On August 17, 2021, Petitioner Miguel Antonio Garcia (“Petitioner”) filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody pursuant to 28 U.S.C. § 2241 (“Section 2241”) (“Petition”). (Pet., ECF No. 1.) The Petition challenges Petitioner's federal convictions sustained in the United States District Court for the District of Colorado in 2019, raising claims based on actual innocence, prosecutorial misconduct, and insufficiency of the evidence. (Id. at 3-4.)
Pinpoint citations in this Order refer to the page numbers appearing in the ECF-generated headers of the cited documents.
On October 5, 2021, Respondent moved to dismiss the Petition, arguing that it merely repeats claims Petitioner made in his post-conviction proceedings under 28 U.S.C. § 2255 and that the Section 2241 Savings Clause does not apply (“October 2021 Motion to Dismiss”). (Oct. 2021 Mot. to Dismiss, ECF No. 9.) On October 27, 2021 and again on November 12, 2021, Petitioner filed two separate voluntary dismissals of his case. (ECF Nos. 11, 12.) On March 10, 2022, the Honorable George H. Wu, the District Judge previously assigned to the case, dismissed the Petition pursuant to Petitioner's requests. (ECF No. 13.) On June 6, 2022, Judge Wu reinstated the Petition in light of two filings made by Petitioner that suggested to the Court that he wished to withdraw his mistakenly filed requests for voluntary dismissal and to reinstate the Petition. (ECF No. 17.) In so doing, Judge Wu referred the reopened matter back to this Magistrate Judge. (Id.)
On June 10, 2022, the Court ordered Respondent “to re-file and re-serve the [October 2021 Motion to Dismiss] on Petitioner within thirty (30) days after the date of this Order, or to file and serve upon Petitioner an Answer to the Petition within forty-five (45) days after the date of this Order” (“June 10 Order”). (June 10, 2022 Order, ECF No. 18, at 1.)
Discussion
To date, Respondent has neither re-filed and re-served the October 2021 Motion to Dismiss, nor filed and served an Answer. Respondent also has not filed any requests for an extension of time in which to re-file the October 2021 Motion to Dismiss or to file an Answer. Accordingly, Respondent hereby is ORDERED to show cause, in writing, by no later than September 1, 2022, why the Petition should not be granted. If Respondent re-files and re-serves the October 2021 Motion to Dismiss or files and serves an Answer before September 1, 2022, this OSC shall be discharged and the case shall proceed according to the briefing schedule provided in the Court's attached June 10 Order.
IT IS SO ORDERED.