Bulahan v. Lackner

Full title: IGNACIO ANDRES BULAHAN, Petitioner, v. HEIDI LACKNER, Warden, Respondent.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Aug 6, 2015

2:15-cv-1512 KJM GGH P (E.D. Cal. Aug. 6, 2015)

Opinion

IGNACIO ANDRES BULAHAN, Petitioner, v. HEIDI LACKNER, Warden, Respondent. No. 2:15-cv-1512 KJM GGH P United States District Court, E.D. California. August 6, 2015

          ORDER

          GREGORY G. HOLLOWS, Magistrate Judge.

         Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

         Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

         Petitioner has also filed a motion for stay and abeyance pending exhaustion of his third claim for relief, which he states is currently pending before the state supreme court. Petitioner states that he filed a habeas petition with the California Supreme Court on December 12, 2014, but that it has not yet been decided. This court has searched the state supreme court database to determine the status of this case and it appears that the habeas petition filed in December 2014 was denied on February 18, 2015. See http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2095417&doc_no =S223201. In light of this updated information, petitioner's motion for stay and abeyance will be denied as moot, and this case will proceed on the current petition which now appears to be completely exhausted.

         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.

         In accordance with the above, IT IS HEREBY ORDERED that:

         1. Petitioner's motion to proceed in forma pauperis is granted;

         2. Petitioner's motion for stay and abeyance, filed July 14, 2015 (ECF No. 3), is denied as moot;

         3. 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;

         4. 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;

         5. 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

         6. 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.