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Gary Allen Bortis v. G. Swarthout

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


April 19, 2012

GARY ALLEN BORTIS, PETITIONER,
v.
G. SWARTHOUT, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. See 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). Dckt. No. 7. Petitioner also requests this court stay these proceedings so he may exhaust his claim of ineffective assistance of counsel. Dckt. No. 2.

I. Application to Proceed In Forma Pauperis

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the court will grant petitioner leave to proceed in forma pauperis.

II. Motion to Stay

Petitioner seeks a stay of these proceedings, arguing that he needs to exhaust his claim of ineffective assistance of counsel. Dckt. No. 2. The court will defer ruling on the motion for stay to give respondent an opportunity to file an opposition or statement of no opposition.

III. Screening

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.

IV. Order

Accordingly, it is hereby ordered that:

1. Petitioner's request for leave to proceed in forma pauperis is granted.

2. Respondent shall file and serve either an answer or a motion in response to petitioner's application and motion for stay 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 December 1, 2011 petition for a writ of habeas corpus with any and all attachments and petitioner's December 1, 2011 motion for stay 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.

20120419

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