Order to show cause (Writ of Habeas Corpus)




Vincent Michael Marino
Petitioner, Civil Action #13-cv-32690 (Southern District of West Virginia/Bluefield)


Bart Masters, Warden FCI McDowell,


October 17th, 2014.

On December 19, 2013, the Petitioner (Marino), who is presently incarcerated at the Federal Correctional Institution (FCI) McDowell, in Welch West Virginia, filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. Section 2241 (Document #1)and a Memorandum in support thereof (Document #2).

The Petitioner (Marino), paid the applicable $5.00 filing fee on January 2, 2014. (Document #3).

This matter is assigned to the Honorable David A. Faber, Senior District Judge and, by Standing Order, it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. Section 636(b)(1)(B).

Pursuant to 28 U.S.C. Section 2243, and the Rules 1(b) and 4 of the Rules Governing Section 2254 Cases in the United States District Courts, it is hereby ORDERED that, on or before DECEMBER 15, 2014, the respondents shall file an Answer to the allegations contained in the Petitioner’s (Marino‘s) Section 2241 Petition and to SHOW CAUSE, if any, why the Writ of Habeas Corpus sought by the Petitioner (Marino) should not be granted.

The respondent’s Answer should respond to the issues raised in Petitioner’s (Marino‘s) Section 2241 and should include copies of any court or other records which will facilitate the determination of the issues raised.The Petitioner (Marino) may file a Reply to the respondent’s Answer by January 30, 2015.
The Petitioner has also filed a “Motion under Fed.R.Civ.P. Rule 37 Requesting This Court to Compel the Respondent to Answer Marino‘s Writ of Habeas Corpus and Correct Inaccurate Record” (Document #5) and a “Motion under Fed.R.Civ.P. Rule 54(b) In Support of His Section 2241 Petition for Writ of Habeas Corpus Compelling the Respondents to Correct His Verdict Form” (Document #6).

First, these motions cite to rules of the Federal Rules of Civil Procedure allows motions to compel discovery disclosures or cooperate in discovery.Rule 54(b) of the Federal Rules of Civil Procedure concerns the entry and effect of civil judgments on multiple claims or involving multiple parties.Both of these rules are inapplicable in the instant matter.The Petitioner is requiring that the court compel the respondent to respond to his Section 2241 Petition, which has been Ordered above.

Accordingly, it is hereby ORDERED that the Petitioner’s motion to compel the respondents to respond, as addressed in Document 5, is DENIED AS MOOT.On the extent that the Petitioner’s motions in Documents 5 and 6 are asking the Court to compel the respondents to grant him the substantive relief requested in his section 2241 petition, UPON RECEIPT OF THE RESPONDENT’S ANSWER to the petitioner’s section 2241, and the PETITIONER’S REPLY, The court will determine the petitioner is entitled to any such relief; however, such motions are presently premature.

Accordingly, it is hereby ORDERED that the petitioner’s motions to compel the substantive relief addressed in Documents 5 and 6 are DENIED WITHOUT PREJUDICE.The Clerk is directed to mail a copy of this Order to Show Cause and the petitioner’s Petition to the respondent and to the United States Attorney for the Southern District of West Virginia, by certified mail, return receipt requested, and to mail a copy of this Order by first-class mail to the Petitioner (Marino).

ENTER: October 17, 2014.

Dwane L. Tinsley

United States Magistrate Judge.

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