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Jerry W. Harris v. Warden

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


January 17, 2013

JERRY W. HARRIS, PETITIONER,
v.
WARDEN, HIGH DESERT STATE PRISON, ET AL., RESPONDENTS.

ORDER

Petitioner commenced this action on December 14, 2012 by filing a motion for an extension of time to file a writ of habeas corpus. On December 20, 2012, the undersigned denied the motion without prejudice. Petitioner was granted thirty days to file a petition for writ of habeas corpus that complies with the requirements of the Rules Governing Section 2254 Cases, the Federal Rules of Civil Procedure and the Local Rules of Practice.

On December 28, 2012, petitioner filed a motion for a forty-five day extension to file his petition for a writ of habeas corpus. On January 14, 2013, petitioner filed his petition for writ of habeas corpus. Thus, his motion for an extension of time to file an application for writ of habeas corpus will be denied as unnecessary.

Plaintiff has also filed two motions to proceed in forma pauperis. Plaintiff's first motion to proceed in forma pauperis was filed on January 2, 2013. (See Dkt. No. 5.) However, the certificate portion of the request which must be completed by plaintiff's institution of incarceration was not been filled out. Also, plaintiff did not file a certified copy of his prison trust account statement for the six month period immediately preceding the filing of the complaint. See 28 U.S.C. § 1915(a)(2). Accordingly, that motion to proceed in forma pauperis will be denied as incomplete.

Nevertheless, plaintiff filed a second motion to proceed in forma pauperis on January 14, 2013. (See Dkt. No. 8.) Examination of this in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, this application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

Since petitioner may be entitled to relief if the claimed violation of constitutional rights is proved, respondent will be directed to file a response to petitioner's habeas petition.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's December 28, 2012 motion for extension of time (Docket No. 4) is DENIED as unnecessary;

2. Petitioner's January 2, 2013 motion to proceed in forma pauperis (Dkt. No. 5.) is DENIED as incomplete;

3. Petitioner's January 14, 2013 motion to proceed in forma pauperis (Dkt. No. 8.) is GRANTED;

4. Respondent is directed to file a response to petitioner's habeas petition within sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, 28 U.S.C. foll. § 2254;

5. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;

6. 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 thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fourteen days thereafter; and

7. The Clerk of the Court shall serve a copy of this order, the form Consent to Proceed Before a United States Magistrate Judge, and 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.

20130117

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