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Sum v. Clark

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


September 30, 2010

BRIAN SUM, PETITIONER,
v.
KEN CLARK, WARDEN RESPONDENT.

The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge

ORDER

Petitioner Brian Sum is a state prisoner proceeding pro se with a petition for writ of habeas corpus brought pursuant to 28 U.S.C. §2254. In Claim Two of his petition, Petitioner argues that he "could not be lawfully convicted for shooting a firearm in a grossly negligent manner COUNT 6 because it is a lesser included offense of shooting a firearm at an occupied building." Respondent answered the petition on January 25, 2010. In the Answer, Respondent construed Claim Two as a state law claim and a due process claim. However, Claim II might be construed as a Double Jeopardy claim.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent has fourteen (14) days to supplement his Answer in the event that this Court construes Claim Two as also raising a Double Jeopardy claim; and

2. No extensions of time will be given to Respondent to supplement his Answer pursuant to this Order.

20100930

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