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Blackwell v. Walker

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


September 7, 2010

ANTHONY M. BLACKWELL, PETITIONER,
v.
JAMES WALKER, RESPONDENT.

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

RELATED CASE 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. Petitioner challenges a Sacramento County Superior Court case where he was convicted of attempted voluntary manslaughter and assault with a firearm. Petitioner indicates he was convicted on June 7, 2007.

Court records indicate that petitioner has a closed case in this court before the undersigned, that is currently stayed pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), CIV 06-1876 RRB GGH. That case was stayed on September 27, 2007, for petitioner to exhaust additional claims, but nothing has occurred in the case since that date. That case involved the same crimes, victims and witness testimony of the instant case. However, in CIV 06-1876, petitioner indicated that he was convicted on June 18, 2004. The court believes that petitioner made an error in writing his conviction date on the instant petition and the two cases are the same.

The instant case contains some of the same issues as CIV 06-1876 in addition to several new claims. Thus, these two cases are related within the meaning of Local Rule 123(a). The actions involve the same parties and are based on the same or similar claims. However, it is not entirely clear what claims have been exhausted, when the claims were exhausted and why petitioner did not request the stay be lifted.

Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved on the instant case, respondents will be directed to file a response to petitioner's habeas petition in CIV S-10-2316 GGH.

In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court shall relate these cases, CIV 06-1876 RRB GGH and CIV S-10-2316 GGH.

It is further ORDERED that solely with respect to CIV S-10-2316 GGH:

1. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form used by this district;

2. Respondents are 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;

3. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within twenty-eight 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 twenty-eight days after service of the motion, and respondents' reply, if any, shall be filed and served within fourteen days thereafter; and

5. The Clerk of the Court shall serve a copy of this order, the consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.

20100907

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