Lujan v. Placer Superior Court

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 11/08/13 granting 5 Motion to reopen this case. The clerk of the court is directed to re-open this action. Petitioner shall submit within 30 days from the date of this order, an affidavit in support of his request to proceed in forma pauperis or the $5.00 filing fee. The clerk of the court is directed to send petitioner a copy of the in forma pauperis form used by this district. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL LUJAN,

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No. 2:13-cv-02205 DAD P

Petitioner,
v.

ORDER

PLACER SUPERIOR COURT,
Respondent.

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Petitioner, an inmate at the Placer County Jail, filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner failed to submit the filing fee or an application to

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proceed in forma pauperis. On November 1, 2013, this action was administratively closed in

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response to a letter received by the court from petitioner in which he indicated that he wished that

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this case to be closed. Now before the court is petitioner’s November 5, 2013 letter in which

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petitioner explains that he did not intend to dismiss this action but was instead requesting that his

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pending criminal case in state court be dismissed.

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Petitioner is advised that a federal petition for a writ of habeas corpus is used to challenge

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a state conviction or judgment as violating the U.S. Constitution or federal laws. See Rule 1 of

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the Rules Governing Section 2254 Cases. A federal habeas action cannot be used to challenge a

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state criminal proceeding which is still pending. Furthermore, petitioner would be required to

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exhaust state court remedies before proceeding to federal court with a habeas action. See 28
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U.S.C. § 2254(b)(1). Therefore, this federal habeas action is premature and will be summarily

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dismissed should petitioner decide to proceed by submitting the filing fee or an application to

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proceed in forma pauperis. See 28 U.S.C. §§ 1914(a); 1915(a).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s November 5, 2013 request to reopen this case (ECF No. 5) is granted;

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2. The Clerk of the Court is directed to re-open this action;

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3. Petitioner shall submit, within thirty days from the date of this order, an affidavit in

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support of his request to proceed in forma pauperis or the $5.00 filing fee; in the alternative,

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within thirty days from the date of this order, petitioner may submit a notice requesting that this

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action be dismissed as premature;
4. Petitioner’s failure to comply with this order will result in a recommendation that this
action be dismissed; and
5. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis

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form used by this district.

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Dated: November 8, 2013

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DAD:4
lujan2205.101a

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