Pacheco v. Geisen et al

Filing 30

ORDER ON REQUEST TO DISMISS (see 20 ) by Magistrate Judge Kevin R. Sweazea. (sls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

WAYLON PACHECO,
Petitioner,
v.

No. 1:17-cv-749-WJ-KRS

TODD GEISEN Captain/Warden, Bureau
of Indian Affairs, Office of Justice Services,
Division of Corrections, DANIEL CORIZ,
Governor, Kewa Pueblo, KENNETH AGUILAR,
Lieutenant Governor, Kewa Pueblo, TIMOTHY
BAILON, Tribal Official, Kewa Pueblo, ROGER
CALABAZA, Tribal Official, Kewa Pueblo, in their
Individual and Official Capacities,
Respondents.
ORDER ON REQUEST TO DISMISS
THIS MATTER comes before the Court sua sponte, following a review of Respondent
Geisen’s Answer to Amended Petition for Writ of Habeas Corpus (“Answer”) (Doc. 20). In his
Answer, Respondent Geisen argues, inter alia, that Petitioner’s request for relief is now moot as
Petitioner’s current detention is by federal order, not tribal order. (Doc. 20, p. 5). Based on this
argument, Respondent Geisen asks the Court to dismiss Petitioner’s Amended Petition for lack
of jurisdiction. (Id. at 6).
Respondent Geisen’s request, however, is not in the form of a motion and thus it is not
properly before the Court for consideration. See Fed. R. Civ. P. 7(b)(1) (“A request for a court
order must be made by motion.”). Further, the Court notes that regardless of Petitioner’s current
order of detention, it appears that Petitioner may be subject to future custody under the tribal
court judgment. And, future custody may be challenged via a petition for writ of habeas corpus.
See 28 U.S.C. § 2254 Rule 1(a)(2).

IT IS, THEREFORE, ORDERED that if Respondent Geisen seeks a ruling on his
request to dismiss Petitioner’s Amended Petition, he shall file a written motion formalizing the
request within ten (10) days of the entry of this order. If the Court does not receive such a
motion within the deadline specified, the cause shall proceed on its merits.

_____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE