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King v. Horell

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 6, 2008

RALPH EDWARD KING, PETITIONER,
v.
ROBERT HORELL, RESPONDENT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding with appointed counsel, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On February 18, 2008, petitioner filed his notice of election to stand on his original petition. Accordingly, the court directed respondent to file a response to the petition within 60 days. However, it appears that although defendant is aware of this action, having filed a joint scheduling report on June 25, 2007, the Attorney General was never served with a copy of the petition or a copy of the order requiring a response. The respondent will be reserved with these documents, and will be required to file a response within 60 days.

The parties are informed that they may, if all consent in writing, have this case assigned to a United States Magistrate Judge for all purposes while preserving their right to appeal any final judgment directly to the United States Court of Appeals for the Ninth Circuit or, where appropriate, to the United States Court of Appeals for the Federal Circuit. See 28 U.S.C. § 636(c)(1), (3); see also E.D. Cal. Local Rule 73-305(a), (c). The parties are advised that they are free to withhold consent and that doing so shall not result in any adverse substantive consequences. See § 636(c)(2). If all parties consent to magistrate judge jurisdiction, the action will be reassigned to the undersigned for all purposes, including entry of final judgment. See Local Rule 73-301 and Local Rule 73-305(b).

A review of the record reflects that petitioner has consented in writing to the exercise of full jurisdiction by a magistrate judge. (See Doc. 7). The record does not reflect any election regarding consent to magistrate judge jurisdiction by respondent. The Clerk of the Court will be directed to provide respondent with the appropriate form which respondent shall then complete, indicating either consent or non-consent as respondent may choose, and file with the court.

Accordingly, IT IS HEREBY ORDERED that

1. The Clerk of the Court shall serve a copy of this order, a copy of petitioner's petition for a writ of habeas corpus (Doc. 1), and a copy of the order requiring respondent's response (Doc. 18) on Michael Patrick Farrell, Senior Assistant Attorney General;

2. Respondent is directed to file a response to petitioner's petition within 60 days from the date of service of this order;

3. Petitioner's traverse or reply (if respondent files an answer to the petition), if any, or opposition or statement of non-opposition (if respondent files a motion in response to the petition) shall be filed and served within 30 days of service of respondent's response;

4. The Clerk of the Court is further directed to forward to respondent the court's "Notice of Availability of a Magistrate Judge to Exercise Jurisdiction and Appeal Instructions" along with the accompanying consent election form; and

2. Respondent shall complete and file the consent election form within 60 days of the date of this order.

20080806

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