Petitioner is a state prisoner proceeding pro se. In accordance with the court's July 2, 2009 order, petitioner has filed a third amended petition.*fn1
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.
Petitioner has also filed a motion for summary judgment. The Rules Governing Section 2254 Cases in the United States District Courts establish that "[t]he Federal Rules of Civil Procedure, to the extent that they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules." Rule 11, Rules Governing § 2254 Cases (emphasis added). At this time, the court finds this action is not appropriate for resolution by way of motion for summary judgment. Respondent has not appeared in this action or had an opportunity to respond to petitioner's federal claims. Accordingly, petitioner's motion will be denied as premature.
In accordance with the above, IT IS HEREBY ORDERED that:
1. The court's June 10, 2009 findings and recommendations are vacated;
2. Respondent is directed to file a response to petitioner's third amended 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;
3. 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;
4. 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;
5. The Clerk of the Court shall serve a copy of this order, a copy of the third amended 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; and
6. Petitioner's August 17, 2009 motion for summary judgment (Doc. No. 34) is ...