Vera v. Gipson

Filing 55

ORDER ADOPTING 45 the Findings and Recommendation for the Denial of the 44 Motion to Set Aside Judgment and DENIAL of a Certificate of Appealability, signed by District Judge Anthony W. Ishii on 7/24/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO VERA,

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Petitioner,

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v.

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CONNIE GIPSON,

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Case No. 1:13-cv-00814-AWI-SKO HC
ORDER ADOPTING THE FINDINGS AND
RECOMMENDATION FOR THE DENIAL OF
THE MOTION TO SET ASIDE JUDGMENT
AND DENIAL OF A CERTIFICATE OF
APPEALABILITY

Respondent.

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(Docs. 44 and 45)

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Petitioner is a state prisoner serving a determinate term for aggravated assault and an

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indeterminate term of thirty years to life for second degree murder. On May 30, 2013, Petitioner

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filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the

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matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.

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On July 16, 2013, following preliminary screening of the petition, the Magistrate Judge

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recommended that the Court dismiss Petitioner's first, second, third, and fourth claims, none of

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which were cognizable in a federal habeas proceeding.1 The Court adopted the recommendations on

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November 12, 2013, and referred the matter back to the Magistrate Judge for further proceedings on

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the remaining claim of a violation of due process in a parole hearing. On August 1, 2014, following

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consideration of matters addressed in the response and traverse, the Magistrate Judge recommended

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that the Court dismiss the petition for writ of habeas corpus without leave to amend. The Court

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The dismissed claims included California state law claims and claims regarding conditions of confinement.

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adopted the Magistrate Judge’s recommendation on September 12, 2014, and the Clerk of Court

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entered judgment for Respondent.

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On January 8, 2015, Petitioner moved to vacate the judgment. Construing the motion to be

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governed by Federal Rule of Civil Procedure 60(b), the Magistrate Judge found that Petitioner

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advanced no grounds justifying relief from judgment and recommended that the motion be denied.

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The Findings and Recommendation, which was filed and served on all parties on February 20, 2015,

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provided that objections could be served within thirty days and replies within fourteen days after the

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filing of any objections.

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Following multiple extensions of time, Petitioner filed objections on July 7, 2015. The

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objections re-argued the five claims set forth in the petition for writ of habeas corpus without

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articulating any specific basis for setting aside the judgment. Emphasizing that Petitioner's

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objections mainly restated Petitioner's claims regarding the conditions of his confinement,

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Respondent answered that Petitioner had not presented any basis for setting aside the judgment.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), having carefully reviewed the

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entire file de novo and considered Petitioner's objections, the Court finds that the Findings and

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Recommendation filed on February 20, 2015 is supported by the record and proper analysis. The

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Court declines to modify the Findings and Recommendation based on any point raised in the

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objections.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Findings and Recommendation filed February 20, 2015 is ADOPTED in full;

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2. Petitioner's motion to reopen the September 12, 2014 judgment is hereby DENIED; and

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3. The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated: July 24, 2015
SENIOR DISTRICT JUDGE

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