(JFM) (HC) DeHerrera v. Kirkland Doc.

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Case 2:05-cv-00245-GEB-PAN Document 12 Filed 04/19/2005 Page 1 of 3

8 United States District Court

9 Eastern District of California

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12 Elmer DeHerrera,

13 Petitioner, No. Civ. S 05-0245 GEB PAN P

14 vs. Order

15 R. Kirkland,

16 Respondent.

17 March 21, 2005, the court closed this file for petitioner’s

18 failure to submit an application to proceed in forma pauperis or

19 pay the filing fee. April 4, 2005, petitioner filed an

20 application to proceed in forma pauperis and a letter explaining

21 the reason for his delay in submitting it. Judgment is vacated.

22 Petitioner has made the showing required to proceed in forma

23 pauperis. See 28 U.S.C. § 1915(a)(1).

24 Upon review of an application for a writ of habeas corpus, a

25 judge must either grant the writ or issue an order directing the

26 respondent to show cause why it should not be granted unless it

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 Case 2:05-cv-00245-GEB-PAN Document 12 Filed 04/19/2005 Page 2 of 3

1 appears from the application that the applicant or person

2 detained is not entitled to relief. 28 U.S.C. § 2243.

3 Petitioner may be entitled to relief if he proves his

4 allegations.

5 It is therefore ordered that:

6 1. The March 21, 2005, order closing file and judgment are

7 vacated.

8 2. Petitioner’s request to proceed in forma pauperis is

9 granted.

10 3. Respondent shall file and serve an answer or motion

11 responding to the application within 60 days from the date of

12 this order. See Rule 4, Fed. R. Governing § 2254 Cases. An

13 answer shall be accompanied by any and all transcripts or other

14 documents relevant to the determination of the issues presented

15 in the application. See Rule 5, Fed. R. Governing § 2254 Cases.

16 4. If the response is an answer, petitioner’s reply, if

17 any, shall be filed and served within 30 days of service of an

18 answer.

19 5. If the response is a motion, petitioner’s opposition or

20 statement of non-opposition shall be filed and served within 30

21 days of service of the motion. Respondent shall have 15 days to

22 file and serve a reply to any opposition.

23 6. The Clerk of the Court shall serve a copy of this order

24 together with a copy of petitioner’s application for a writ of

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1 habeas corpus on Jo Graves, Senior Assistant Attorney General.

2 So ordered.

3 Dated: April 14, 2005

4 /s/ Peter A. Nowinski

PETER A. NOWINSKI
5 Magistrate Judge

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