BARTHELUS v. TSOUKARIS et al

Filing 3

MEMORANDUM/ORDER TO ANSWER that Petitioners request to proceed in forma pauperis is GRANTED; that the habeas petition is DISMISSED WITH PREJUDICE as to respondents John Tsoukaris, Loretta Lynch, Robert Margist, and the U.S. Department of Homeland Security; that the Clerk shall serve a copy of the Petition (ECF No. 1) and this Order upon respondent Charles L. Green by regular mail, with all costs of service advanced by the United States; that the Clerk shall forward a copy of the Petition (ECF No. 1) and this Order to the Chief, Civil Division, United States Attorneys Office, at the following email address: [e-mail]; that within forty-five (45) days of the date of the entry of this Order, Respondent shall fi le and serve an answer which responds to the allegations and grounds in the Petition and which includes all affirmative defenses respondent seeks to invoke, in addition to any other arguments respondent may make, the answer shall specifically addr ess the applicability, if any; that within thirty (30) days of receipt of the answer, Petitioner may file a reply to the answer; that within seven (7) days of Petitioners release, by parole or otherwise, Respondent shall electronically file a written notice of the same with the Clerk; etc. Signed by Judge John Michael Vazquez on 9/8/16. N/M(DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________________
:
CENECK BARTHELUS,
:
:
Petitioner,
:
Civ. No. 16-4237 (JMV)
:
v.
:
:
MEMORANDUM AND ORDER
JOHN TSOUKARIS, et al.,
:
:
Respondents.
:
_________________________________________ :
Petitioner, Ceneck Barthelus, is an immigration detainee currently detained at the Essex
County Correctional Facility in Newark, New Jersey. He is proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2241 and has paid the $5.00 filing fee as well as
submitted an application to proceed in forma pauperis.
The proper sole respondent in this case is Charles L. Green, who is the warden of the
Essex County Correctional Facility. See Rumsfeld v. Padilla, 542 U.S. 426, 434–35, 124 S. Ct.
2711, 2717, 159 L. Ed. 2d 513 (2004). Therefore, the Petition will be dismissed with prejudice
as to respondents John Tsoukaris, Loretta Lynch, Robert Margist, and the U.S. Department of
Homeland Security.
In his federal habeas petition, Petitioner challenges his current immigration detention,
which he alleges has exceeded one year. “Federal courts have habeas jurisdiction to examine the
statutory and constitutional bases for an immigration detention unrelated to a final order of
removal.” Ufele v. Holder, 473 F. App’x 144, 146 (3d Cir. 2012) (citing Demore v. Kim, 538
U.S. 510, 517-18 (2003)); see also Diop v. ICE/Homeland Sec., 656 F.3d 221, 226 (3d Cir.
2011). In accordance with Rule 4 of the Rules Governing Section 2254 Cases, applicable to §
2241 cases through Rule 1(b) of the Rules Governing Section 2254 Cases, this Court has

screened the habeas petition for dismissal and determined that dismissal without an answer and
the record on this issue is not warranted. In addition to any arguments that Respondent may
make in the answer, Respondent shall specifically address what impact, if any, Chavez-Alvarez v.
Warden York Cnty. Prison, 783 F.3d 469 (3d Cir. 2015), has on the habeas petition.
Accordingly, IT IS this 8th day of September, 2016,
ORDERED that Petitioner’s request to proceed in forma pauperis is GRANTED; and it
is further
ORDERED that the habeas petition is DISMSISED WITH PREJUDICE as to
respondents John Tsoukaris, Loretta Lynch, Robert Margist, and the U.S. Department of
Homeland Security; and it is further
ORDERED that the Clerk shall serve a copy of the Petition (ECF No. 1) and this Order
upon respondent Charles L. Green by regular mail, with all costs of service advanced by the
United States; and it is further
ORDERED that the Clerk shall forward a copy of the Petition (ECF No. 1) and this
Order to the Chief, Civil Division, United States Attorney’s Office, at the following email
address: [e-mail]; and it is further
ORDERED that within forty-five (45) days of the date of the entry of this Order,
Respondent shall file and serve an answer which responds to the allegations and grounds in the
Petition and which includes all affirmative defenses respondent seeks to invoke, in addition to
any other arguments respondent may make, the answer shall specifically address the
applicability, if any, of the holding of Chavez-Alvarez v. Warden York Cty. Prison, 783 F.3d 469
(3d Cir. 2015) to the facts of this case; and it is further

ORDERED that Respondent shall file and serve with the answer certified copies of all
documents necessary to resolve Petitioner’s claim(s) and affirmative defenses; and it is further
ORDERED that within thirty (30) days of receipt of the answer, Petitioner may file a
reply to the answer; and it is further
ORDERED that within seven (7) days of Petitioner’s release, by parole or otherwise,
Respondent shall electronically file a written notice of the same with the Clerk; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Petitioner
by regular U.S. mail.

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge