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McGavock v. Brown

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


April 22, 2009

STEPHEN ALEXANDER MCGAVOCK, PETITIONER,
v.
EDMUND G. BROWN, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, but did not file an in forma pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). This matter was originally filed in and transferred from the Fresno Division of the Eastern District to the District of Nevada- Las Vegas Division, after which it was evidently transferred from the District of Nevada back to the Fresno Division of the Eastern District and finally from there to this Sacramento Division of the United States District Court, Eastern District of California. See docket # 1, # 2, # 3, # 5 and # 6.

An order dismissing this case for petitioner's apparent failure to exhaust state court remedies as to his April 2008, conviction is currently pending before the district judge. See, Findings and Recommendations, filed on January 18, 2009 (docket # 8). Because the court recommended dismissal of this petition, the undersigned did not require petitioner to file the appropriate in forma pauperis affidavit or the filing fee at the time.

Subsequently, on April 13, 2009, the District of Nevada has transferred what appears to be another putative habeas petition from the same petitioner, evidently attempting to challenge the same Nevada County conviction, for which petitioner was sentenced to a term of three years and eighteen months on a guilty plea, on either April 8, 2008, or on April 24, 2008, for a violation of, inter alia, Cal. Penal Code § 245(c) (assault with a deadly weapon, other than a firearm, on a peace officer). Without explanation, this petition is submitted on inappropriate forms, such as on a form for a motion to vacate, set aside or correct a sentence by a person in federal custody, pursuant to 28 U.S.C. § 2255, and a state court form for a petition for an order of expungement. Petitioner is evidently incarcerated at California State Prison-Avenal on a state court sentence and does not explain why he is attempting to proceed on a § 2255 motion, nor are his interchanging references to both Las Vegas, Nevada, and to Nevada County Superior Court in California coherent. Finally, petitioner still does not demonstrate state court exhaustion of the grounds upon which he attempts to proceed. Accordingly, these inapposite documents will be stricken.

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court is directed to strike from the docket of this case petitioner's filings transferred in from the District of Nevada in this case on April 13, 2009 (docket # 15).

20090422

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