Cornellier v. Schriro et al

Filing 27

ORDER that the petitioner's motion for status 25 is granted. IT IS FURTHER ORDERED that the petitioner's Petition for Reconsideration (doc. #18) is granted. IT IS FURTHER ORDERED that the Order 16 dismissing the petitioner's Amende d Petition for Writ of Habeas Corpus and the Judgment of dismissal 17 are both vacated. IT IS FURTHER ORDERED that the Clerk of the Court shall mail the petitioner a copy of the Report and Recommendation 15.IT IS FURTHER ORDERED that the petition er shall file his objection to the Report and Recommendation (doc. #15) no later than July 6, 2007. IT IS FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order to the Clerk of the Court for the Ninth Circuit. Signed by Judge Paul G Rosenblatt on 6/7/07.(DMT, )

Cornellier v. Schriro et al

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Allace L. Cornellier, Petitioner, vs. Dora Schriro, et al., Respondents.

) ) ) No. CV-05-2679-PHX-PGR (JM) ) ) ) ORDER ) ) ) )

On December 20, 2006, Magistrate Judge Marshall entered a Report and Recommendation stating that the petitioner's Amended Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be dismissed as having been untimely filed. The petitioner did not file any objection to the Report and Recommendation. On February 6, 2007, the Court entered both an order (doc. #16) that accepted the Magistrate Judge's Report and Recommendation (doc. #15) and a judgment (doc. #17) that dismissed the petitioner's Amended Petition for Writ of Habeas Corpus. On February 23, 2007, the petitioner filed a Petition for Reconsideration (doc. #18) pursuant to Fed.R.Civ.P. 60(b), wherein he stated that he did not object to the Report and Recommendation because he
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never received a copy of it, as well as a Notice of Appeal (doc. #19), and a Motion/Request for a Certificate of Appealability (doc. #20). On February 28, 2007, the Court entered a certificate of appealability, wherein it noted that the petitioner's concurrent Notice of Appeal divested this Court of jurisdiction to rule on the reconsideration request; the certificate further stated that the Court would grant the reconsideration requested by the petitioner if the Ninth Circuit remanded this case to this Court for the purpose of resolving the reconsideration request. Unbeknownst to the Court, the Ninth Circuit entered an order on April 5, 2007 wherein it stayed the petitioner's appeal pending a ruling from this Court on the petitioner's request for reconsideration. The petitioner, in a letter filed on June 4, 2007, has requested that the Court provide him with the status of his request for reconsideration.1 Although the copy of the Report and Recommendation was timely mailed to the petitioner at his address of record and was never returned to the Court as undeliverable, the Court accepts the petitioner's statement in his Petition for Reconsideration that he never received his copy. The Court will this thus grant the Petition for Reconsideration, and will vacate its order and judgment entered
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The undersigned Judge notes that the first knowledge he received of the Ninth Circuit's order came on June 7, 2007, which is when (1) the Ninth Circuit Clerk's Office telephoned the undersigned Judge's chambers inquiring about the status of a ruling on the petitioner's request for reconsideration and faxed to chambers a copy of its April 5, 2007 order on being informed that this Court had no knowledge of the order, and (2) coincidentally, the undersigned Judge received a copy of the petitioner's letter of inquiry which contained a copy of the Ninth Circuit's order. A review of the Ninth Circuit's order establishes that the reason that this Court never timely received a copy of the order is that the Ninth Circuit inadvertently captioned the order as being from an appeal from a District of Oregon case and presumably mistakenly sent the copy of its order to the District of Oregon. A copy of the Ninth Circuit's order was docketed in this case on June 7, 2007. -2-

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on February 6, 2007, and will permit the petitioner to now file an objection to the Report and Recommendation. Therefore, IT IS ORDERED that the petitioner's motion for status (doc. #25) is granted. IT IS FURTHER ORDERED that the petitioner's Petition for Reconsideration (doc. #18) is granted. IT IS FURTHER ORDERED that the Order (doc. #16) dismissing the petitioner's Amended Petition for Writ of Habeas Corpus and the Judgment of dismissal (doc. #17) are both vacated. IT IS FURTHER ORDERED that the Clerk of the Court shall mail the petitioner a copy of the Report and Recommendation (doc. #15). IT IS FURTHER ORDERED that the petitioner shall file his objection to the Report and Recommendation (doc. #15) no later than July 6, 2007. IT IS FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order to the Clerk of the Court for the Ninth Circuit. DATED this 7th day of June, 2007.

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