Hernandez v. U.S.

Full title: JAIME HERNANDEZ, Petitioner, v. UNITED STATES ATTORNEY GENERAL, Respondent

Court: United States District Court, D. Idaho

Date published: Aug 12, 2002

Case No. CV-02-0056-S-BLW (D. Idaho Aug. 12, 2002)

Opinion

Case No. CV-02-0056-S-BLW.

August 12, 2002

ORDER

B. LYNN WINMILL, Chief Judge, District

This matter was reassigned to this Court by the Honorable Magistrate Judge Mikel H. Williams. Pending before the Court in this habeas corpus action is Respondents Motion to Dismiss Petition for Writ of Habeas Corpus (Docket No. 5). Petitioner has filed no response to this Motion. Having reviewed the record in this matter and otherwise being fully informed, the Court enters the following Order.

I. BACKGROUND

In his Petition, Petitioner alleges that he was born in Mexico, that he moved with his family to the United States as a lawful permanent resident in 1971, but that he never applied for citizenship. On November 8, 1999, Petitioner was convicted of an aggravated felony in Alaska. An Order of Removal was issued on June 11, 2001, and Petitioner was held in custody at the Immigration and Naturalization Services (INS) facility in Canyon County, Idaho.

On February 6, 2002, Petitioner filed a Petition for Writ of Habeas Corpus, alleging that his custody was illegal because he was a "national of the United States." On February 28, 2002, Respondent filed a Response and Motion to Dismiss Petition for Writ of Habeas Corpus. Petitioner has filed nothing further in this matter.

II. MOTION TO DISMISS

Respondent moves this court to dismiss the Petition, alleging that Petitioner cannot avail himself of habeas corpus jurisdiction because he is no longer in custody. In his Petition for Writ of Habeas Corpus, Petitioner claimed that the instant Court had habeas corpus jurisdiction because he was being held in custody. Petitioner has failed to contest the Motion to Dismiss. The Court shall consider Petitioner's failure to respond as his consent to the granting of the Motion to Dismiss and shall grant the Motion. See Local Rule 7.1(f).

The Court reminds Petitioner's counsel that, in the future, if his client does not oppose a Motion, he should file a "non-opposition to motion," in accordance with Local Rule 7.1(a)(5). Counsel should be aware that it is unwise to remain counsel of record in a matter and allow a dispositive motion to proceed to judicial determination without the filing of a non-opposition or a response. If counsel lost contact with his client, making it impossible to respond to the motion in a timely manner, he should have immediately filed an application for withdrawal as counsel of record.

ORDER

NOW THEREFORE IT IS HEREBY ORDERED that Respondent's Motion to Dismiss (Docket No. 5) is GRANTED. Petitioner's Petition is dismissed without prejudice.