Fuentez v. Brown, et al

Filing 148

ORDER AMENDING 139 Order 140 Judgment signed by Magistrate Judge Gary S. Austin on 10/22/2010. (Lundstrom, T)

(HC) Fuentez v. Brown, et al

Doc. 148

1 2 3 4 5 6 7 8 9 10 EASTERN DISTRICT OF CALIFORNIA 11 12 13 Petitioner, 14 v. 15 FRED BROWN, Warden, 16 Respondent. 17 18 On October 4, 2010, the Court issued Order Denying Petition for Writ of Habeas Corpus 19 With Prejudice. On October 14, 2010, Respondent filed the instant motion to alter or amend 20 judgment pursuant to Fed. R. Civ. P. 52(b). Fed. R. Civ. P. 52(b) provides that the Court may amend 21 its findings and judgment on a party's motion filed no later than 28 days after entry of judgment. 22 Respondent moves to clarify the Court's order by changing the terminology of the finding from 23 "ineffective performance" to "deficient performance." The Court finds Respondent's arguments 24 persuasive. According to Strickland v. Washington, 466 U.S. 668, 691 (1984), "any deficiencies in 25 counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance 26 under the Constitution." In this case, the Court determined that defense counsel's performance was 27 deficient but that no prejudice resulted therefrom. 28
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UNITED STATES DISTRICT COURT

TOMMY FUENTEZ, aka TOMMY FUENTES,

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1:02-CV-05948 GSA HC ORDER AMENDING JUDGMENT (Fed. R. Civ. P. 52(b))

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Accordingly, IT IS HEREBY ORDERED that the Order of October 4, 2010, is AMENDED at pages 18 and 21 to reflect a finding of "deficient" performance rather than "ineffective" performance by defense counsel.

IT IS SO ORDERED. Dated:

October 22, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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