Burrell v. Sisto

Filing 10

ORDER signed by Magistrate Judge Dale A. Drozd on 9/3/09 ORDERING that the court's 7 findings and recommendations are VACATED; petitioner's 8 application to proceed IFP is GRANTED; respondent to file a response to the petition w/in 60 d ays; reply due w/in 30 days of answer; if response is a motion, opposition or statement of non-opposition due w/in 30 days of motion, reply due w/in 15 days thereafter; and the clerk to serve a copy of this order, a copy of the petition and the Order re Consent on the Attorney General.(cc: Michael Farrell)(Yin, K)

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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 On August 14, 2009, the court issued findings and recommendations, recommending dismissal of this action due to petitioner's failure to either pay the filing fee or file an application to proceed in forma pauperis. On August 28, 2009, petitioner filed objections to the findings and recommendations, together with an application to proceed in forma pauperis. Good cause appearing, the court will vacate its findings and recommendations and allow the case to proceed in accordance with this order. 1 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA JONATHAN BURRELL, Petitioner, vs. D.K. SISTO, Warden, Respondent. / Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. In accordance with the court's July 2, 2009 order, petitioner has also filed an application to proceed in forma pauperis.1 Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. 1915(a). ///// ORDER No. CIV S-09-1734 FCD DAD P 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 DAD:9 burr1734.100 Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response to petitioner's habeas petition. In accordance with the above, IT IS HEREBY ORDERED that: 1. The court's August 14, 2009 findings and recommendations are vacated; 2. Petitioner's application to proceed in forma pauperis (Doc. No. 8) is granted; 3. Respondent is directed to file a response to petitioner's habeas petition within sixty days from the date of this order. See Rule 4, Fed. R. Governing 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed. R. Governing 2254 Cases; 4. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer; 5. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fifteen days thereafter; and 6. The Clerk of the Court shall serve a copy of this order, a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. 2254, and a copy of the form regarding consent or request for reassignment on Michael Patrick Farrell, Senior Assistant Attorney General. DATED: September 3, 2009. 2

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