Nunez v. Gastello

Filing 13

ORDER DIRECTING RESPONDENT signed by Magistrate Judge Edmund F. Brennan on 7/21/16 to File a Response to Petition within 60 days. Clerk to serve a copy of this order, a copy of the Petition and the Order re Consent on the Attorney General. The 8 Findings and Recommendations are VACATED. (cc Michael Farrell)(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESUS NUNEZ,

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No. 2:16-cv-1158-KJM-EFB P
Petitioner,

v.

ORDER

J. GASTELLO, Warden,

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Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He proceeds in forma pauperis. See 28 U.S.C. § 1915(a).

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A judge “entertaining an application for a writ of habeas corpus shall forthwith award the

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writ or issue an order directing the respondent to show cause why the writ should not be granted,

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unless it appears from the application that the applicant or person detained is not entitled thereto.”

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28 U.S.C. § 2243. It is not apparent from the face of the application that petitioner is not entitled

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to relief.1

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Accordingly, it is hereby ordered that:

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1. The June 16, 2016 findings and recommendations (ECF No. 8) are vacated.

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The court initially recommended summary dismissal of the petition, but upon further
review of the amended petition, will order a response from the respondent. Accordingly, the June
16, 2016, findings and recommendations (ECF No. 8) are vacated.

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2. Respondent shall file and serve either an answer or a motion in response to petitioner’s

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application within 60 days from the date of this order. See Rule 4, Rules Governing §

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2254 Cases. Any response shall be accompanied by any and all transcripts or other

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documents relevant to the determination of the issues presented in the application. See

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Rules 4, 5, Rules Governing § 2254 Cases.

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3. Petitioner’s reply, if any, shall be filed and served within 30 days of service of an
answer.
4. 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

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motion, and respondent’s reply, if any, shall be filed within 14 days thereafter.

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5. The Clerk of the Court shall serve a copy of this order together with a copy of

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petitioner’s amended petition for writ of habeas corpus (ECF No. 10) with any and all

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attachments on Michael Patrick Farrell, Senior Assistant Attorney General for the

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State of California. The Clerk of the Court also shall serve on the Senior Assistant

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Attorney General the consent form used in this court.

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Dated: July 21, 2016.

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