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Mathis v. Scribner

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


August 27, 2008

ROBERT MATHIS, PETITIONER,
v.
L.E. SCRIBNER, ET AL., RESPONDENTS.

ORDER

Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondents will be directed to file a response to petitioner's second amended habeas petition.

On May 27, 2008, petitioner filed a motion for judgment on the pleadings based on Rules 58(d) and 60(b) of the Federal Rules of Civil Procedure. In the alternative, petitioner requests that the court issue an order to show cause so that this action can be determined on the merits. Petitioner's motion based on Rules 58(d) and 60(b) lacks merit since no judgment has been issued. In light of this order directing respondents to file a response, petitioner's motion has been rendered moot.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Respondents are directed to file a response to petitioner's second amended habeas petition (Doc. No. 11) within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the second amended petition. See Rule 5, Fed. R. Governing § 2254 Cases;

2. If the response to the second amended habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;

3. If the response to the second amended habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondents' reply, if any, shall be filed and served within fifteen days thereafter;

4. Petitioner's May 27, 2008 motion for judgment on the pleadings (Doc. No. 12), is denied as moot; and

5. The Clerk of the Court shall serve a copy of this order together with a copy of the second amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.

20080827

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