Valencia v. Gipson

Filing 24

ORDER Striking the 20 Order Adopting 19 Findings and Recommendations and Reopening the Period for Petition to Comment Thereon, signed by District Judge Lawrence J. O'Neill on 11/26/14. 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LUIS ALBERTO VALENCIA,
Petitioner,

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Case No. 1:13-cv-01864-LJO-SMS HC

v.
CONNIE GIPSON, Warden,

ORDER STRIKING THE ORDER
ADOPTING FINDINGS AND
RECOMMENDATIONS AND REOPENING
THE PERIOD FOR PETITIONER TO
COMMENT THEREON

Respondent.

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(Docs. 19, 20, and 22)

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On August 20, 2014, the Magistrate Judge issued findings and

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recommendations recommending that the Court dismiss count two but allow the petition to proceed

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on remaining counts. The Clerk of Court mailed Petitioner a copy of the findings and
recommendations. On September 4, 2014, the copy mailed to Petitioner was returned to the Clerk

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mark "undeliverable, name and ID do not match." Thereafter, the Court ordered that the findings
and recommendations be adopted.
Local Rule 183 required Petitioner to advise the Court of a change of address within 63

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days. When Petitioner did not do so, the Magistrate Judge recommended that the case be dismissed

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without prejudice for failure to prosecute. In this instance, the copy of the findings and

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recommendations that the Clerk mailed to Petitioner's last known address was successfully

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delivered. On November 24, 2014, Petitioner advised the Court that his address had not changed
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and that he could not explain why the copy of Document 19 was not delivered to him.

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Having failed to receive the findings and recommendations recommending dismissal for

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Petitioner's second ground for relief (Doc. 19), Petitioner requests that the Court set aside the order

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adopting the findings and recommendations (Doc. 20) and reopen the time in which he may

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comment on the findings and recommendations (Doc. 19). Rule 60(b)(1) permits relief from an

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order such as the findings and recommendations (Doc. 19) for excusable neglect. Because

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Petitioner never received a copy of the findings and recommendations (Doc. 19), his failure to file

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comments within the permitted time period constitutes excusable neglect.
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Accordingly, the Court hereby ORDERS that the October 28, 2014 Order Adopting

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Findings and Recommendations be vacated and that comment period provided for the August 20,

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2014 findings and recommendations recommending the dismissal of count two of the petition (Doc.

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19) be reopened for thirty (30) days from the date of service of this order. The Clerk of Court is

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directed to serve petitioner with both a copy of this Order and a copy of the August 20, 2014
findings and recommendations (Doc. 19) at his address as shown on the docket.

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Within thirty (30) days after being served with copies of the August 20, 2014 findings and
recommendations (Doc. 19), Petitioner may file written objections with the Court. Such a

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document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C).

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Petitioner is advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

November 26, 2014

UNITED STATES DISTRICT JUDGE

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