Free Order Setting Briefing Schedule - Habeas Corpus - District Court of California - California

Case 3:08-cv-01485-JAH-NLS

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Filed 08/15/2008

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA OSCAR "DIANA" SANTANDER LEYVA, v. Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Case No. 08CV1485 JAH (NLS) ORDER REQUIRING RESPONSE TO PETITION [28 U.S.C. § 2241]

ROBIN BAKER, Field Office Director, San Diego District, United States Bureau of Immigration and Customs Enforcement; et al., Respondents.

On August 14, 2008, petitioner, through counsel, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner also concurrently filed an application for issuance of an order to show cause pursuant to 28 U.S.C. § 2243, seeking this Court's order requiring respondents to file a return to the petition within three days of issuance of an order to show cause and seeking an order setting a hearing date on the petition. Petitioner points out, in his application, that Section 2243 provides for a response to the petition be "`returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.'" See Appl. at 3 (quoting 28 U.S.C. § 2243). Although petitioner contends that, due to

petitioner's continued incarceration, "[i]mmediate relief ... is ... essential in the form of an order for the government to show cause within 72 hours as to why [the instant petition] should not be granted," petitioner presents no support for such a short time frame. See id. Therefore, after a careful review of the petition and the application, this Court deems it appropriate to require

07CV1966

Case 3:08-cv-01485-JAH-NLS

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Filed 08/15/2008

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respondents to file a return to the petition but deems it inappropriate to require respondents to do so within three days. This Court further deems it inappropriate to schedule a hearing on the petition at this time. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's application for an order to show cause [doc. # 2] is GRANTED IN PART and DENIED IN PART. 2. Respondents shall file a return to the petition for writ of habeas corpus on or

before September 5, 2008. Respondents shall include copies of all pertinent documents, orders, and transcripts relevant to this petition, and shall also make a recommendation regarding the need for an evidentiary hearing on the merits of the petition. 3. Petitioner shall file a traverse on or before September 19, 2008. Absent further

order of this Court, this matter will be deemed under submission at that time. 4. The Clerk of Court shall serve a copy of the petition together with a copy of this

order on the United States Attorney or an authorized representative, 880 Front Street, Room 6293, San Diego, CA 92101.

Dated:

August 15, 2008

JOHN A. HOUSTON United States District Judge

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