Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order filed December 17, 2008, petitioner was ordered to file an in forma pauperis affidavit or pay the appropriate filing fee within thirty days. The time period for complying with the court's order expired, and petitioner had not filed an in forma pauperis affidavit or paid the appropriate filing fee. Accordingly, the undersigned recommended that this action be dismissed without prejudice. See Local Rule 11-110; Fed. R. Civ. P. 41(b).
Petitioner has filed objections to the findings and recommendations, together with an application to proceed in forma pauperis. Good cause appearing, the court will vacate its findings and recommendations, and the case will proceed in accordance with this order.
Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).
Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response to petitioner's habeas petition.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The court's January 28, 2009 findings and recommendations are vacated;
2. Petitioner's February 11, 2009 application to proceed in forma pauperis (Doc. No. 8) is granted;
3. Respondent is directed to file a response to petitioner's habeas petition 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 petition. See Rule 5, Fed. R. Governing § 2254 Cases;
4. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;
5. If the response to the 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 respondent's reply, if any, shall be filed and served within fifteen days thereafter;
6. The Clerk of the Court shall serve a copy of this order, a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a copy of the form regarding consent or request for reassignment on Michael Patrick Farrell, Senior Assistant Attorney General.
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