Powell v. Capenhaver

Filing 19

ORDER DENYING 18 Petitioner's Motion for Reconsideration of the Court's Order Granting Respondent an Extension of Time to File a Response signed by Magistrate Judge Barbara A. McAuliffe on 3/11/2013. (Jessen, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT FOR THE

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LAWRENCE POWELL,

12

Petitioner,

13
14

vs.
PAUL COPENHAVER,

15
16

Respondent.

[ECF No. 18]

Petitioner is a federal prisoner proceeding pro se in a habeas corpus action pursuant to
28 U.S.C. § 2241.

19
20

ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION OF
THE COURT’S ORDER GRANTING
RESPONDENT AN EXTENSION OF
TIME TO FILE A RESPONSE

____________________________________/

17
18

1:12-cv-01781 AWI BAM (HC)

On February 21, 2013, the Court granted Respondent’s motion for extension of time to
file a response to the instant petition.

21

On March 7, 2013, Petitioner filed an opposition to Respondent’s motion for an

22

extension of time. Petitioner contends that he will be prejudiced by extending the time for

23

Respondent to file a response to the petition because he is currently in custody beyond his

24

projected release date of December 2012. Because the Court has already granted Respondent’s

25

motion for an extension of time, the Court will construe Petitioner’s motion as a motion for

26

reconsideration of the Court’s order.

27

///

28

///

1

Local Rule 230(j) provides:

2

Whenever any motion has been granted or denied in whole or in part, and
a subsequent motion for reconsideration is made upon the same or any alleged
different set of facts, counsel shall present to the Judge or Magistrate Judge to
whom such subsequent motion is made an affidavit or brief, as appropriate,
setting forth the material facts and circumstances surrounding each motion for
which reconsideration is sought, including:

3
4
5
6

(1) when and to what Judge or Magistrate Judge the prior motion
was made;

7
(2) what ruling, decision, or order was made thereon;
8
9

(3) what new or different facts or circumstances are claimed to
exist which did not exist or were not shown upon such prior motion, or what
other grounds exist for the motion; and

10
11

(4) why the facts or circumstances were not shown at the time of
the prior motion.

12
As Petitioner acknowledges the determination of whether he is entitled to release is the
13
subject of the dispute set forth in the instant petition. In the February 21, 2013, order the Court
14
found Respondent had demonstrated good cause for an extension of time based on the fact that
15
further research and documentation was necessary to prepare an adequate answer. Without
16
sufficient briefing and evidence the Court cannot properly determine the lawful release date, and
17
Petitioner’s assertion does not overcome the Court’s finding of good cause. Respondent was
18
granted forty-five additional days to file a response, which is not excessive or unreasonable
19
under the circumstances. Accordingly, Petitioner has not demonstrated a sufficient basis for
20
reconsideration of the Court’s February 21, 2013, and his motion must be DENIED.
21
22
23
24
25
26
27
28

IT IS SO ORDERED.
Dated:
10c20k

March 11, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE