Smith v. Scillia et al

Filing 9

ORDER Vacating 5 Order Dismissing Case; and Recalling 6 Clerk's Judgment. Case reopened. FURTHER ORDERED that respondents shall have forty-five (45) days from entry of this order within which to answer, or otherwise respond to, the petition. Signed by Judge Philip M. Pro on 12/9/10. (Copies have been distributed pursuant to the NEF - MMM)

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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 vs. ANTHONY SCILLIA, et al., Respondents. BRECK SMITH, Petitioner, UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ) ) ) ) ) ) ) ) ) 2:10-CV-01596-PMP-PAL ORDER VACATING DISMISSAL This is an action initiated by Breck Smith, a state prisoner, who has submitted a petition for writ of habeas corpus and an application to proceed in forma pauperis. Based on the financial information submitted with the latter submission, the application was denied and Smith was directed to pay the $5 filing fee or renew his application for in forma pauperis status showing a change in his financial condition. Shortly after the court entered its order of dismissal, Smith's payment was received. Smith now moves the court to reconsider the dismissal. Good cause appearing, the motion shall be granted and the matter shall be reopened. IT IS THEREFORE ORDERED that the Order dismissing the petition without prejudice (docket #5) is VACATED and the Judgment RECALLED. The Clerk shall reopen the docket. IT IS FURTHER ORDERED that the clerk shall file the petition for writ of habeas corpus (docket #1-1) and shall ELECTRONICALLY SERVE the petition (docket #1) upon the respondents. IT IS FURTHER ORDERED that respondents shall have forty-five (45) days from entry of this order within which to answer, or otherwise respond to, the petition. In their answer or other response, respondents shall address any claims presented by petitioner in his petition as well as any claims presented by petitioner in any Statement of Additional Claims. Respondents shall raise all potential affirmative defenses in the initial responsive pleading, including lack of exhaustion and 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 procedural default. Successive motions to dismiss will not be entertained. If an answer is filed, respondents shall comply with the requirements of Rule 5 of the Rules Governing Proceedings in the United States District Courts under 28 U.S.C. 2254. If an answer is filed, petitioner shall have fortyfive (45) days from the date of service of the answer to file a reply. IT IS FURTHER ORDERED that, henceforth, petitioner shall serve upon the Attorney General of the State of Nevada a copy of every pleading, motion, or other document he submits for consideration by the Court. Petitioner shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the Attorney General. The Court may disregard any paper that does not include a certificate of service. After respondents appear in this action, petitioner shall make such service upon the particular Deputy Attorney General assigned to the case. DATED: December 9, 2010. PHILIP M. PRO United States District Judge 2

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