Barkley v. Lizarraga

Filing 3

ORDER signed by Magistrate Judge Allison Claire on 4/2/2015 DENYING petitioner's 1 motion, without prejudice; petitioner is GRANTED 30 days to file a petition; petitioner shall also submit, within 30 days, an application to proceed ifp or t he $5.00 filing fee; petitioner's failure to comply will result in a recommendations that this matter be dismissed without prejudice; and the Clerk shall send petitioner a form for filing a petition for writ of habeas corpus and an application to proceed ifp. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERMAINE BARKLEY,

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No. 2:15-cv-0655 AC P

Petitioner,
v.

ORDER

JOE LIZARRAGA,
Respondent.

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Petitioner, a state prisoner at Mule Creek State Prison, has filed a motion to stay his

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petition for writ of habeas corpus. ECF No. 1. No petition has been filed, however. Without a

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petition on file, there is nothing to stay.

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In order to commence an action, petitioner must file a petition for writ of habeas corpus as

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required by Rule 3 of the Rules Governing Section 2254 cases, and he must either pay the filing

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fee ($5.00) or submit an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a),

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1915(a). The court cannot issue any orders granting or denying relief until an action has been

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properly commenced. Therefore, petitioner’s motion to stay will be denied without prejudice.

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Petitioner will be provided an opportunity to file a petition and submit an application to

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proceed in forma pauperis or the appropriate filing fee. The court is cognizant of petitioner’s

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efforts to obtain his legal files in paper rather than electronically, and aware that this continuing

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delay impacts petitioner’s ability to be thorough in his petition. Petitioner must nevertheless
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complete and file a petition for writ of habeas corpus, to the best of his present ability, in order to

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commence this action. He may then renew his request to stay this action and/or request leave to

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file an amended petition in the future when he has obtained all his files.

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

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1. Petitioner’s March 23, 2015 motion, ECF No. 1, is denied without prejudice.

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2. Petitioner is granted thirty days from the filing date of this order to file a petition that

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complies with the requirements of the Rules Governing Section 2254 Cases, the Federal Rules of

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Civil Procedure, and the Local Rules of Practice; the petition must bear the docket number

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assigned this case. Petitioner shall also submit, within thirty days from the filing date of this

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order, an application to proceed in forma pauperis on the form provided herewith, or the filing fee

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in the amount of $5.00.

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3. Petitioner’s failure to comply with this order will result in a recommendation that this
matter be dismissed without prejudice.

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4. The Clerk of the Court is directed to send petitioner the court’s form for filing a

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petition for writ of habeas corpus under 28 U.S.C. § 2254, and an application to proceed in forma

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pauperis by a prisoner.

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DATED: April 2, 2015

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