United States District Court

For the Northern District of California

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MITCHELL TATMON,

Petitioner, 

 v.

JOHN W. HAVILAND, Warden,

Respondent. /

No. C 09-0094 WHA (PR) 

ORDER GRANTING

RECONSIDERATION, VACATING

DISMISSAL AND REOPENING

CASE; TO SHOW CAUSE

(Docket No. 9)

Petitioner, a California prisoner currently incarcerated at Solano State Prison, has filed a

pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. On May 15, 2009,

petitioner’s application to proceed in forma pauperis was denied in light of his inmate account

balance and income. On July 7, 2009, petitioner filed a corrected inmate account statement,

which continued to demonstrate his ability to pay the $5.00 filing fee. On September 30, 2009,

petitioner was ordered to pay the filing fee within thirty days or the case would be dismissed. 

On November 30, 2009, the case was dismissed without prejudice because petitioner had not

paid the filing fee. Unbeknownst to the Court, however, the financial office of the clerk’s office

received payment of the filing fee on November 24, 2009. Although such payment was

approximately 25 days late, petitioner has shown in his motion for reconsideration that this

delay was caused by the prison trust account losing three of his requests for payment of his

filing fee. Good cause appearing, therefore, the motion for reconsideration (docket number 9) is

GRANTED, the order of dismissal is VACATED and the clerk shall REOPEN the file.

//

Case 3:09-cv-00094-WHA Document 13 Filed 01/22/10 Page 1 of 2
United States District Court

For the Northern District of California

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In order to expedite the resolution of this matter, it is hereby ordered that:

1. The clerk shall mail a copy of this order, the May 15, 2009 order to show cause,

and the petition with all attachments thereto, to the respondent and the respondent's attorney, the

Attorney General of the State of California. The clerk shall also serve a copy of this order on

the petitioner. 

2. Respondent shall file with the court and serve on petitioner, within sixty days of

service of this order, an answer conforming in all respects to Rule 5 of the Rules Governing

Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

the four claims found cognizable in the May 15, 2009 order to show cause. Respondent shall

file with the answer and serve on petitioner a copy of all portions of the state trial record that

have been transcribed previously and that are relevant to a determination of the issues presented

by the petition. 

3. If petitioner wishes to respond to the answer, he shall do so by filing a traverse

with the court and serving it on respondent within thirty days of service of the answer.

4. Respondent may file a motion to dismiss on procedural grounds in lieu of an

answer, as set forth in Rule 4 of the Rules Governing Section 2254 Cases. If respondent files

such a motion, petitioner shall file with the court and serve on respondent an opposition or

statement of non-opposition within thirty days of receipt of the motion, and respondent shall file

with the court and serve on petitioner a reply within 15 days of receipt of any opposition. If a

motion is filed it will be ruled upon without oral argument, unless otherwise ordered.

IT IS SO ORDERED.

Dated: January 22 , 2010. 

WILLIAM ALSUP

UNITED STATES DISTRICT JUDGE

HC.09\TATMON0094.REC.wpd

Case 3:09-cv-00094-WHA Document 13 Filed 01/22/10 Page 2 of 2