Torrealba-Marin v. Wolf et al

Filing 23

ORDER FOR SERVICE AND RESPONSE by Magistrate Judge Stephan M. Vidmar. Petitioner must serve Respondents no later than September 17, 2020. Respondents must respond within 20 days of service. Petitioner may, if desired, reply within 14 days of the filing of the response. (am)

Case 1:20-cv-00659-WJ-SMV Document 23 Filed 08/18/20 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FELIPE ALEXANDER TORREALBA-MARIN,
Petitioner,
v.

No. 20-cv-0659 WJ/SMV

CHAD WOLF, WILLIAM P. BARR,
MATTHEW T. ALBENCE, COREY PRICE,
THALAMUS JONES, CHAD MILLER,
UNITED STATES DEPARTMENT OF
HOMELAND SECURITY, and UNITED STATES
IMMIGRATION AND CUSTOMS ENFORCEMENT,
Respondents.
ORDER FOR SERVICE AND RESPONSE
THIS MATTER is before the Court on the Petition for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 [Doc. 1], filed on July 6, 2020, and on the Motion for Order to Show Cause
Pursuant to 28 U.S.C. § 2243 [Doc. 15], filed on July 27, 2020. The Court will order Petitioner
to effect service on Respondents in accordance with the governing authorities—including but not
limited to Fed. R. Civ. P. 4(i)—within 30 days.1 Further, the Court will grant the Motion for
Order to Show Cause [Doc. 15] and require Respondents to respond to the Petition within 20 days

The Court’s obligation to serve most habeas petitions stems from the Rules Governing 2254 and 2255 Cases. For
example, Rule 4 of the Rules Governing 2254 Cases provides that “[i]f the petition is not dismissed, . . . the clerk must
serve a copy of the petition and any order on the respondent.” If applicable, the in forma pauperis statute also
provides a basis for court-supplied service. 28 U.S.C. § 1915(d) (2018) (“The officers of the court shall issue and
serve all process, and perform all duties in [in forma pauperis] cases.”). Here, however, Petitioner is not proceeding
under §§ 2254, 2255, or 1915. His Petition challenges his immigration detention under 28 U.S.C. § 2241. [Doc. 1]
at 3. Accordingly, it appears to the Court that the Federal Rules of Civil Procedure, including the service provision
of Rule 4, apply to this case. See Fed. R. Civ. P. 81(a)(4).
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Case 1:20-cv-00659-WJ-SMV Document 23 Filed 08/18/20 Page 2 of 2

of the date that they are served, showing cause why a writ of habeas corpus should not issue. See
28 U.S.C. § 2243 (2018).
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Petitioner,
no later than September 17, 2020, serve process on Respondents AND FURTHER file proof of
service in conformity with the requirements of Fed. R. Civ. P. 4, or show cause why not. If
Petitioner does not timely comply, the Court may consider dismissal of this proceeding.
IT IS ADDITIONALLY ORDERED that Petitioner, no later than September 17, 2020,
DELIVER a copy of this Order to the United States attorney for the District of New Mexico, an
assistant United States attorney, or clerical employee whom the United States attorney designates
in a writing filed with the court clerk, OR SEND a copy of this Order by registered or certified
mail to the civil-process clerk at the United States attorney's office AND FURTHER file proof of
such on the record.
IT IS FURTHER ORDERED that Respondents, within 20 days after service, respond to
the Petition or otherwise show cause why a Writ of Habeas Corpus should not issue.
IT IS FURTHER ORDERED that if Petitioner desires to file a reply (traverse), he may
do so within 14 days of the filing of the response.
IT IS FURTHER ORDERED that the Court will set a hearing, if needed, at a later time.
See § 2243.
IT IS SO ORDERED.
______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
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