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Gill v. Martel

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


February 11, 2010

ANDREW WRIGHT GILL, PETITIONER,
v.
MICHAEL MARTEL, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4). Petitioner has paid the filing fee.

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.

On March 30, 2009, petitioner requested that the court stay this action while he exhausts a claim in the California Supreme Court. Dckt. No. 3. In a letter dated June 26, 2009, petitioner indicated that his unexhausted claim was pending before the California Supreme Court in case number S173583. Dckt. No. 6. A review of the California Supreme Court's docket shows that petitioner's application in case number S173583 was denied on November 10, 2009.*fn1 In light of this denial, petitioner's request to stay this action will be denied as moot.

Accordingly, it is hereby ordered that:

1. Respondent shall file and serve either an answer or a motion in response to petitioner's application 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.

2. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer.

3. 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 respondent's reply, if any, shall be filed within 14 days thereafter.

4. The Clerk of the Court shall serve a copy of this order together with a copy of petitioner's December 28, 2009, amended petition for a writ of habeas corpus with any and all attachments 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.

5. Petitioner's March 30, 2009 motion to stay this action is denied as moot.


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