Opinion
5:24-cv-01518-HDV-MAA
12-09-2024
Juan Francisco Luis v. J. Doerer
CIVIL MINUTES - GENERAL
MARIA A. AUDERO, UNITED STATES MAGISTRATE JUDGE
Proceedings (In Chambers): Order to Show Cause Why the Petition Should Not Be Granted Based on Respondent's Failure to File Motion to Dismiss or Answer
Background
On July 10, 2024, Petitioner Juan Francisco Luis, a federal inmate currently incarcerated at FCI Victorville - Medium II in Adalanto, California, constructively filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (“Petition”). (Pet., ECF No. 1.) On August 23, 2024, the Court directed Petitioner to file an amended petition using the correct form. (ECF No. 7.) The First Amended Petition was timely filed on September 13, 2024. (ECF No. 8.) The Court then issued its Order Requiring Response to Petition (“ORR”) on October 4, 2024, which ordered Respondent to do the following:
• Within fourteen (14) days after the date of [the ORR], Respondent shall file and serve a Notice of Appearance, notifying the Court of the name of the attorney who will have principal charge of the case, together with the address where the attorney may be served and the attorney's telephone and fax number. This information is important to ensure accurate service of Court documents.
• If Respondent contends that the Petition can be decided without the Court's reaching the merits of Petitioner's claims (e.g., because Respondent contends that Petitioner has failed to exhaust any administrative remedies as to any ground for relief alleged in the Petition, or that the Petition is barred by the statute of limitations), Respondent may file a Motion to Dismiss within thirty (30) days after the date of [the ORR]. The Motion to Dismiss shall not address the merits of Petitioner's claims, but rather shall
be confined to the basis for Respondent's contention that dismissal without reaching the merits of Petitioner's claims is warranted. At the time the Motion to Dismiss is filed, Respondent shall electronically lodge with the Court all records bearing on Respondent's contention in this regard. The Court may issue a subsequent order for the lodging of a paper copy of a lodgment if the lodgment is not usable in its electronic format.
• If Respondent does not contend that the Petition can be decided without the Court reaching the merits of Petitioner's claims, Respondent may file and serve an Answer to the Petition within forty-five (45) days after the date of [the ORR]. At the time the Answer is filed, Respondent shall electronically lodge with the Court all records bearing on the merits of Petitioner's claims. The Answer also specifically shall address the necessity for an evidentiary hearing to resolve any issue.(ECF No. 9, ¶¶ 3-4, 7.) The ORR was served on Respondent electronically using the Court's CM/ECF System, pursuant to the Agreement on Acceptance of Service set forth in Appendix C to the Court's Local Rules. C.D. Cal. L.R. App. C.
To date, however, no Notice of Appearance has been filed, and neither a Motion to Dismiss nor an Answer has been filed. Nor has the Court received any requests for extensions of time. Accordingly, Respondent is hereby ORDERED to show cause, in writing, by no later than January 8, 2025, why the Court should not recommend that the Petition be granted. If Respondent files and serves either a Motion to Dismiss or an Answer before January 8, 2025, this order to show cause shall be discharged and the case shall proceed according to the briefing schedule provided in the Court's attached ORR.
It is so ordered.
Attachment:
Order Requiring Response to Petition (28 U.S.C. § 2241) (ECF No. 9)