United States District Court, N.D. California
ORDER REOPENING ACTION; ORDER TO SHOW CAUSE INTRODUCTION
JOSEPH C. SPERO, Magistrate Judge.
Petitioner seeks federal habeas relief from his federal detention. The petition for such relief pursuant to 28 U.S.C. § 2241 is now before the Court for review. Respondents shall file a response to the petition on or before October 15, 2014, unless an extension is granted. Respondents may wish to submit briefing on who is the proper respondent (or respondents) in this action, or on whether the REAL ID Act of 2005 (Pub. L. No. 109-13, 119 Stat. 231, § 106(a), amending 8 U.S.C. § 1252) deprives this Court of jurisdiction, or on both issues.
This action has been transferred here from the Ninth Circuit. Accordingly, the action is hereby REOPENED. The Clerk is directed to amend the docket accordingly.
According to the petition, petitioner, an alien, is being detained by the Yuba County Sheriff on behalf of the United States Immigration and Customs Enforcement ("ICE") pursuant to a final order of removal. He was ordered to be removed from the United States on September 11, 2013. However, as of April 4, 2014, the date the instant petition was filed, he remains in federal custody. He claims that his continued detention violates his right to due process.
A. Standard of Review
Section 2241 allows "the Supreme Court, any justice thereof, the district courts and any circuit judge" to grant writs of habeas corpus "within their respective jurisdictions." 28 U.S.C. § 2241(a). A district court shall "award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. Summary dismissal is appropriate only where the allegations in the petition are vague or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
As grounds for federal habeas relief, petitioner alleges that his continued detention violates his right to due process. When liberally construed, this claim is cognizable on federal habeas review.
1. The Clerk shall serve a copy of this order, the petition and all attachments thereto, on respondents. The Clerk shall also serve a copy of this order on petitioner.
2. Respondents shall file with the Court and serve on petitioner, within ninety (90) days of the date this order is filed, an answer showing cause why a writ of habeas corpus should not be granted based on petitioner's cognizable claim. Respondents shall file with the answer and serve on petitioner a copy of all portions of the state trial record that previously have been transcribed and that are relevant to a determination of the issues presented by the petition.
3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the Court and serving it on respondents within thirty (30) days of the date the answer is filed.
4. In lieu of an answer, respondents may file, within ninety (90) days of the date this order is filed, a motion to dismiss on procedural grounds. If respondents file such a motion, petitioner shall file with the Court and serve on respondents an opposition or statement of non-opposition within thirty (30) days of the date the motion is filed, and respondents shall file with the ...