Grado v. Lucero et al

Filing 5

ORDER by Magistrate Judge Kevin R. Sweazea granting 3 Motion to Proceed under 28 U.S.C. 1915 and Directing Respondent to Answer (cbf)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO GABRIEL H. GRADO, Petitioner, v. No. 17-CV-00984-MV-KRS ALICIA LUCERO, Respondent. ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND TO ANSWER This matter is before the Court on Petitioner Gabriel H. Grado’s Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody [Doc. 1] and Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 [Doc. 2]. Because it appears that Petitioner is unable to prepay the filing fee pursuant to 28 U.S.C. § 1915, the Court will grant Petitioner’s motion to proceed in forma pauperis. The Court has reviewed the Petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and determined that it is not subject to summary dismissal. Therefore, the Court will order Respondent to file an answer to the Petition. IT IS THEREFORE ORDERED that Petitioner’s Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 [Doc. 2] is GRANTED and Petitioner may proceed without prepayment of costs or other fees or the necessity of giving security therefor; IT IS FURTHER ORDERED that the Clerk of the Court is directed to forward copies of this Order and the Petition [Doc. 1] to Respondent and the New Mexico Attorney General; IT IS FURTHER ORDERED that Respondent answer the Petition within thirty (30) days from entry of this Order. Respondent’s answer shall advise, but is not limited to, whether Petitioner has exhausted his state court remedies as to the issues raised in the federal petition. Respondent shall attach to his answer copies of any pleadings or other papers pertinent to the issue of exhaustion which was filed by Petitioner in the sentencing court, the state district court, the state court of appeals and the state supreme court, together with copies of all memoranda filed by both parties in support of or in response to those pleadings. Respondent shall also attach to the answer copies of all state court findings and conclusions, docketing statements, and opinions issued in Petitioner’s state court post-conviction or appellate proceedings. In the event Respondent denies exhaustion, he shall identify the State procedures currently available to Petitioner given the nature of Petitioner’s claims and their procedural history. ____________________________________ KEVIN R. SWEAZEA UNITED STATES MAGISTRATE JUDGE

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