Fosselman v. Evans

Filing 25

ORDER DENYING 23 Plaintiff's Motion for Leave to File Motion for Reconsideration and DIRECTING Clerk of Court to Send Petitioner Copy of 19 Respondent's Answer, signed by Magistrate Judge Gary S. Austin on 12/2/2010. (Jessen, A)

(HC) Fosselman v. Evans

Doc. 25

1 2 3 4 5 6 7 8 9 10 11 12 LORENZO FOSSELMAN, JR., 13 Petitioner, 14 15 16 M. S. EVANS, Warden, 17 Respondent. 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. 21 On October 29, 2010, the undersigned issued Findings and Recommendation that 22 recommended the petition be denied. The Findings and Recommendation was served on all parties 23 and contained notice that any objections were to be filed within thirty (30) days of the date of service 24 of the order. 25 On November 19, 2010, Petitioner filed the instant Request for Leave to File Motion for 26 Reconsideration. Petitioner complains that he did not receive Respondent's answer in the mail and 27 was deprived of the opportunity to file a traverse. Petitioner's request will be denied. The Advisory 28
U . S . D is t r ic t C o u r t E. D . C a lifo r n ia cd

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) 1:10-CV-00328 LJO GSA HC ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR RECONSIDERATION [Doc. #23] ORDER DIRECTING CLERK OF COURT TO SEND PETITIONER COPY OF RESPONDENT'S ANSWER [Doc. #19]

v.

1
Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16

Committee Notes to Rule 5 of the Rules Governing Section 2254 Cases note that a traverse "tends to be a mere pro forma refutation of the return, serving little if any expository function . . . . [It] is not required except in those instances where it will serve a truly useful purpose." Petitioner does not state what useful purpose his traverse would have served. He states he has received a copy of the Findings and Recommendation. Therefore, he has been provided with the reasons for the Court's recommendation that the petition be denied. Moreover, on November 29, 2010, Petitioner filed his objections to the Findings and Recommendation. Whatever arguments Petitioner could have made in his traverse could have been and presumably have been made in the objections. Therefore, a traverse at this point is unnecessary. Nevertheless, Petitioner complains he has not received Respondent's answer. The Court will direct the Clerk to provide Petitioner with a copy. Accordingly, IT IS HEREBY ORDERED that Petitioner's Request for Leave to File a Motion for Reconsideration is DENIED. The Clerk of Court is DIRECTED to serve Petitioner with a copy of Respondent's Answer.

IT IS SO ORDERED. Dated: 6i0kij

December 2, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

17 18 19 20 21 22 23 24 25 26 27 28
U . S . D is t r ic t C o u r t E. D . C a lifo r n ia cd

2