IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 18, 2008
PAUL EDWARD DEWEY, PETITIONER,
D. K. SISTO, ET AL., RESPONDENTS.
Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. On June 25, 2008, the court recommended that this action be dismissed for petitioner's failure to obey an order either to pay the $5.00 filing fee or to seek leave to proceed in forma pauperis. On July 18, 2008, petitioner paid the filing fee. Thus, the June 25, 2008, findings and recommendations must be vacated and the petition must be reviewed. See Rule 4, Rules Governing Section 2254 Proceedings (providing for preliminary review of habeas petitions).
A judge "entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. It is not apparent from the face of the application that the petitioner is not entitled to relief.
Accordingly, it is hereby ordered that:
1. The June 25, 2008, findings and recommendations are vacated.
2. Respondent shall file and serve either an answer or a motion in response to petitioner's application within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rules 4, 5, Fed. R. Governing § 2254 Cases.
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 motion, and respondents' reply, if any, shall be filed within 15 days thereafter.
5. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner' March 14, 2008, petition for a writ of habeas corpus with any and all attachments on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California.
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