Free Order - District Court of California - California

Case 3:08-cv-00018-H-NLS

Document 6

Filed 02/13/2008

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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 Although the petition names the state of California as respondent, the Department of Homeland Security, as the agency with custody of Petitioner, appears to be the real party in interest. See 28 U.S.C. § 2242; Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004) ("Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent.") -108cv18
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ANTONIO F. SILVEYRA, Petitioner, vs. PEOPLE OF THE STATE OF CALIFORNIA, Respondent. __________________________________ MICHAEL CHERTOFF, Secretary of the Department of Homeland Security, Real party in interest.

CASE NO. 08-CV-0018 H (NLS) SCHEDULING ORDER

On January 2, 2008, Petitioner Antonio F. Silveyra, a detainee in the custody of the Department of Homeland Security, Bureau of Immigration and Customs Enforcement, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.1 (Doc. No. 1.) On January 9, 2008, the Court dismissed the petition without prejudice because Petitioner did not pay the $5.00 filing fee or request to proceed in forma pauperis. (Doc. No. 2.) Petitioner has paid the

Case 3:08-cv-00018-H-NLS

Document 6

Filed 02/13/2008

Page 2 of 2

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fee and the Court reopened the case on February 4, 2008. (Doc. No. 3.) The Court orders the following briefing schedule with respect to the petition: 1. 2. Respondent shall file a response to the petition on or before March 14, 2008. If Petitioner chooses to file a reply, he should do so before April 11, 2008.

It is unclear from the face of the petition whether Petition is challenging the validity of his ongoing detention or a final order of removal. See Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (2005) (circuit courts "sole judicial body able to review challenges to final orders of deportation, exclusion, or removal"). Accordingly, Respondent should address whether the petition is properly before this Court or whether the petition must be transferred to the Ninth Circuit. IT IS SO ORDERED. DATED: February 13, 2008 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT

COPIES TO: All parties of record United States Attorney's Office Civil Division 880 Front Street Suite 6253 San Diego, CA 92101 DHS Detention Facility 1115 North Imperial Avenue El Centro, CA 92243

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