Barber v. Scott

Filing 14

ORDER signed by Judge Peter A. Nowinski on 05/26/05 ORDERING the 02/01/05 order to close this case is VACATED; Petitioner's request to proceed IFP is GRANTED and direct respondent to respond to petitioner's application within 60 days; Clerk to serve a copy of this order together with a copy of petitioner's 12/06/04 petition on Jo Graves 610.Case reopened. (cc via email: Jo Graves w/petition)(Warren, P)

(HC) Barber v. Scott

Doc. 14

Case 2:04-cv-01844-MCE-EFB

Document 14

Filed 05/27/2005

Page 1 of 3

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 vs. McGregor W. Scott, et al., Respondents. -oOoSeptember 2, 2004, petitioner filed a motion to determine whether venue for his habeas action lay in this court. December Robert Elmer Barber, Petitioner, No. Civ. S 04-1844 MCE PAN P Order United States District Court Eastern District of California

6, 2004, petitioner submitted a petition for a writ of habeas corpus and since petitioner did not put any case number in the caption, the Clerk of the Court opened a new case. December 22,

2004, the court determined venue is proper in this court and gave petitioner 30 days to submit an application for a writ of habeas corpus in this case. February 1, 2005, this file was closed March 30,

because petitioner did not submit a habeas petition.

Dockets.Justia.com

Case 2:04-cv-01844-MCE-EFB

Document 14

Filed 05/27/2005

Page 2 of 3

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

2005, a different magistrate determined the December 6 habeas petition should have been filed in this case and directed the Clerk of the Court to make that petition part of this file. Examination of the in forma pauperis affidavit reveals petitioner is unable to afford the costs of suit. proceed in forma pauperis is granted. Leave to

See 28 U.S.C. § 1915(a).

A judge "entertaining an application for a writ of habeas corpus shall forthwith 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. Petitioner may be entitled to relief. I therefore vacate the February 1, 2005, order to close this file, grant petitioner's request to proceed in forma pauperis and direct respondent to respond to petitioner's application within 60 days. See Rule 4, Fed. R. Governing § 2254 Cases. An answer

shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rule 5, Fed. R. Governing § 2254 Cases.

Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer. If the response to petitioner's

application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondent's reply, if any, shall be filed within 15 days thereafter. The Clerk of the Court shall

serve a copy of this order together with a copy of petitioner's
2

Case 2:04-cv-01844-MCE-EFB

Document 14

Filed 05/27/2005

Page 3 of 3

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

December 6, 2004, petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Jo Graves, Senior Assistant Attorney General for the State of California. Dated: May 26, 2005. /s/ Peter A. Nowinski PETER A. NOWINSKI Magistrate Judge

3