VICE v. KERNAN

Full title: HERBERT C. VICE, Petitioner, v. SCOTT KERNAN, et al., Respondents

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

Date published: Mar 1, 2007

No. CIV S-06-0610 DFL KJM P (E.D. Cal. Mar. 1, 2007)

Opinion

No. CIV S-06-0610 DFL KJM P.

March 1, 2007

ORDER

KIMBERLY MUELLER, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On December 15, 2006, the undersigned filed findings and recommendations that were served on petitioner and that contained notice to petitioner that any objections to the findings and recommendations were to be filed within twenty days. Petitioner has filed objections to the findings and recommendations.

In his objections, petitioner notes that although he did not lose credits as a result of the original hearing, a classification committee later assessed a 120 day loss of credit as a result of the underlying disciplinary proceeding. Accordingly, the findings and recommendations of December 15, 2006 are vacated.

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

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

1. The findings and recommendations of December 16, 2005 are hereby vacated;

2. Respondents are directed to file a response to petitioner's habeas petition within sixty days from the date of this order.See Rule 4, Fed.R. Governing § 2254 Cases. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, Fed.R. Governing § 2254 Cases;

3. 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;

4. 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 respondents' reply, if any, shall be filed and served within fifteen days thereafter; and

5. The Clerk of the Court shall serve a copy of this order together with 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.