Delgado v. State of New Mexico et al

Filing 5

ORDER by Magistrate Judge Kevin R. Sweazea granting 2 Motion for Leave to Proceed in forma pauperis, and directing Respondent to answer. (cbf)

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

ANDREW JOEY DELGADO,
Petitioner,
v.

No. 17-CV-01004-KG-KRS

STATE OF NEW MEXICO,
Respondent.

ORDER GRANTING MOTION TO PROCEED
IN FORMA PAUPERIS AND TO ANSWER
This matter is before the Court on Petitioner Andrew Joey Delgado’s Petition Under 28
U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody [Doc. 1] and Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 [Doc. 2]. Based on the
financial information provided by Petitioner, the Court finds that he is unable to prepay the filing
fee pursuant to 28 U.S.C. § 1915 and, therefore, the Court will grant Petitioner’s motion to proceed
in forma pauperis.

The Court has reviewed the Petition pursuant to Rule 4 of the Rules

Governing Section 2254 Cases in the United States District Courts. The Petition names the State
of New Mexico as the Respondent, but the proper respondent in a § 2254 proceeding is the
“warden of the facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004); see also Rule 2(a) of the Rules Governing Section 2254 Cases In the United States District
Courts (“If the petitioner is currently in custody under a state-court judgment, the petition must
name as respondent the state officer who has custody.”). Petitioner currently is incarcerated at the
Lea County Correctional Facility and, therefore, the Court will substitute Raymond Smith, the
Warden at Lea County Correctional Facility, as the sole named Respondent. Because the Petition

is not otherwise subject to summary dismissal, the Court will order Respondent to file an answer to
the Petition.
IT IS, THEREFORE, ORDERED that Petitioner’s Prisoner’s Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915 [Doc. 2] is GRANTED and Petitioner may
proceed without prepayment of costs or other fees or the necessity of giving security therefor;
IT IS FURTHER ORDERED that Clerk of the Court is directed to substitute Raymond
Smith as the sole named Respondent and to forward copies of this Order and the Petition [Doc. 1]
to Respondent and the New Mexico Attorney General;
IT IS FURTHER ORDERED that Respondent answer the Petition within thirty (30) days
from entry of this Order. Respondent’s answer shall advise, without limitation, whether Petitioner
has exhausted his state-court remedies as to the issues raised in the federal petition. Respondent
shall attach to his answer copies of any pleading or paper pertinent to the issue of exhaustion which
was filed by Petitioner in the sentencing court, the state district court, the state court of appeals and
the state supreme court, together with copies of all memoranda filed by both parties in support of
or in response to those pleadings. Respondent shall also attach to the answer copies of all state
court findings and conclusions, docketing statements, and opinions issued in Petitioner’s state
court post-conviction or appellate proceedings. In the event Respondent denies exhaustion, he
shall identify the State procedures currently available to Petitioner given the nature of Petitioner’s
claims and their procedural history.

____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE