(HC) Hernandez v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PHILLIP R. HERNANDEZ, No. 2:19-cv-2414 KJM DB P 12 Petitioner, 13 v. ORDER 14 JOSIE GASTELO, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. Previously, the Court issued findings and 19 recommendations to dismiss this action as untimely. (ECF No. 7.) Upon review of petitioner’s 20 objections (ECF No. 9) and good cause appearing, the Court will vacate the findings and 21 recommendations. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). 22 Since petitioner may be entitled to relief if the claimed violation of constitutional rights is 23 proved, respondent will be directed to file a response to petitioner’s habeas petition. 24 In accordance with the above, IT IS HEREBY ORDERED that: 25 1. The January 29, 2020, findings and recommendations (ECF No. 7) are VACATED; 26 2. Petitioner’s December 2, 2019, motion for extension of time (ECF No. 1) is 27 GRANTED; 28 2 □□□ □□□ TAIT IVI MMU, PIR Te AY eM 1 3. Respondent is directed to file a response to petitioner’s habeas petition within sixty 2 days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall 3 be accompanied by all transcripts and other documents relevant to the issues presented 4 in the petition. See Rule 5, 28 U.S.C. foll. § 2254; 5 4. Ifthe response to the habeas petition is an answer, petitioner’s reply, if any, shall be 6 filed and served within thirty days after service of the answer; 7 5. Ifthe response to the habeas petition is a motion, petitioner’s opposition or statement 8 of non-opposition to the motion shall be filed and served within thirty days after 9 service of the motion, and respondent’s reply, if any, shall be filed and served within 10 fourteen days thereafter; and 11 6. The Clerk of the Court shall serve a copy of this order, the form Consent to Proceed 12 Before a United States Magistrate Judge, and a copy of the petition for writ of habeas 13 corpus pursuant to 28 U.S.C. § 2254 on Tami Krenzin, Supervising Deputy Attorney 14 General. 15 | Dated: May 4, 2020 17 18 ORAH BARNES /DLBT: UNITED STATES MAGISTRATE JUDGE 19 | DBAnboxRoutine/hem2414. vacate fr+100 20 21 22 23 24 25 26 27 28