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Splawn v. Cate

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


January 21, 2010

STEVEN MICHAEL SPLAWN, PETITIONER,
v.
MATTHEW CATE, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding with counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner has paid the filing fee. On January 20, 2010, the court ordered that the petition be dismissed with leave to amend for failure to name the proper respondent. That court vacates that order, as petitioner has, in fact, named a proper respondent. See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996).

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 January 20, 2010 order dismissing the petition with leave to amend is vacated.

2. Respondent shall file and serve either an answer or a motion in response to petitioner's application and motion 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 14 days thereafter.

5. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's January 14, 2010, petition for a writ of habeas corpus with any and all attachments, including the January 14, 2010 motion for stay and abeyance, on Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. The Clerk of the Court also shall serve on the Senior Assistant Attorney General the consent form used in this court.

20100121

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