McFarland v. State of California

Filing 11

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/09/17 ordering petitioners request for an extension of time, construed as a motion for relief from judgment pursuant to Rule 60(b) 9 , is granted. The clerk is directed to reopen this case. Pe titioners request for leave to proceed in forma pauperis 10 is granted. Respondent shall file and serve either an answer or a motion in response to petitioners application within 60 days from the date of this order. Petitioners reply, if any, shal l be filed and served within 30 days of service of an answer. If the response to petitioners application is a motion, petitioners opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respon dents reply, if any, shall be filed within 14 days thereafter. The Clerk of the Court shall serve a copy of this order together with a copy of petitioners petition for writ of habeas corpus 1 with any and all attachments on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. The Clerk of the Court also shall serve on the Senior Assistant Attorney General the consent form used in this court. (cc: Michael Farrell, Attorney General). (Plummer, M) Modified on 2/9/2017 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS SCOTT McFARLAND,

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No. 2:16-cv-2568-EFB P

Petitioner,
v.

ORDER

STATE OF CALIFORNIA,
Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. On December 6, 2016, the court dismissed this action because petitioner failed

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to pay the filing fee or seek leave to proceed in forma pauperis. ECF No. 6. On December 16,

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2016, petitioner filed a notice of change of address, and the Clerk of the Court re-served

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petitioner with the order of dismissal. ECF No. 8. On February 6, 2017, petitioner filed a request

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for an extension of time along with a “declaration of illiteracy” and an application for leave to

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proceed in forma pauperis. ECF Nos. 9, 10. Construed as a motion for relief from judgment

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pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, and good cause appearing,

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petitioner’s request for an extension of time will be granted.

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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. Further, examination of the in forma pauperis affidavit reveals that petitioner is unable

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to afford the costs of suit.

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Accordingly, it is hereby ordered that:

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1. Petitioner’s request for an extension of time, construed as a motion for relief from

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judgment pursuant to Rule 60(b) (ECF No. 9), is granted.

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2. The Clerk is directed to reopen the case.

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3. Petitioner’s request for leave to proceed in forma pauperis (ECF No. 10) is granted.

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4. 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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5. Petitioner’s reply, if any, shall be filed and served within 30 days of service of an
answer.
6. If the response to petitioner’s application is a motion, petitioner’s opposition or

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

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petitioner’s petition for writ of habeas corpus (ECF No. 1) 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: February 9, 2017.

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