Edgar Saldana v. M D Biter

Filing 80

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Michael W. Fitzgerald for Report and Recommendation (Issued) 75 . Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition, records on file, and the Report and Recommendation of the magistrate judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner has objected. The Court accepts the findings and recommendation of the magistrate judge. Petitioner also objects to the magistr ate judge's minute order filed concurrently with the Report on June 3, 2014, in which she denied Petitioner leave to conduct discovery. (Objections at 15-16.) The magistrate's order was neither clearly erroneous nor contrary to law. Petitioner's objection is OVERRULED. Petitioner's request for an evidentiary hearing is DENIED.IT IS ORDERED that judgment be entered denying the petition and dismissing this action with prejudice. (See Order for details.) (mp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EDGAR SALDANA,
Petitioner,
v.
M.D. BITER, Warden,
Respondent.

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NO. CV 11-10467-MWF (AGR)

ORDER ACCEPTING FINDINGS
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the petition, records

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on file, and the Report and Recommendation of the magistrate judge. Further,

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the Court has engaged in a de novo review of those portions of the Report to

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which Petitioner has objected. The Court accepts the findings and

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recommendation of the magistrate judge.

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Petitioner also objects to the magistrate judge’s minute order filed

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concurrently with the Report on June 3, 2014, in which she denied Petitioner

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leave to conduct discovery. (Objections at 15-16.)

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Pursuant to Fed. R. Civ. P. 72(a), a “district judge . . . must consider timely

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objections1 and modify or set aside any of part of [a magistrate’s pretrial order]

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that is clearly erroneous or is contrary to law.” The magistrate found that

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Petitioner had not established good cause to conduct discovery. (Dkt. No. 74.)

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With respect to the first three of the four items Petitioner wanted to discover, the

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magistrate found that her Report found no merit to his claims and discovery of

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those items would not change her analysis. (Id. at 2.) She also found that

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Petitioner wanted to argue that he was placed in double jeopardy when he pled

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guilty to possession of a shotgun but was then tried for murder with the same

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shotgun. As the magistrate judge explained, one of the elements of double

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jeopardy is that it must involve the same offense. (Id. at 2-3 (citing Brown v.

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Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)).)

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With respect to the fourth item, which requested police reports potentially

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regarding the brandishing of a gun at the scene, the magistrate judge found that

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Petitioner’s request was “purely speculative” as all witness statements were

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provided to the defense and no gunshot residue tests were performed. (Id. at 3.)

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The magistrate’s order was neither clearly erroneous nor contrary to law.

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Petitioner’s objection is OVERRULED. Petitioner’s request for an evidentiary

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hearing is DENIED.

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IT IS ORDERED that judgment be entered denying the petition and
dismissing this action with prejudice.

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DATED: August 12, 2014

MICHAEL W. FITZGERALD
United States District Judge

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Petitioner’s objection is not timely as it should have been filed within 14
days of the date of service the order. Fed. R. Civ. P. 72(a). Nonetheless, the
Court will address the merits of the objection.
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