Vibanco v. Hatton

Filing 38

ORDER VACATING 35 36 Order and Judgment and REOPENING Case; ORDER GRANTING Petitioner's 37 Motion for Extension of Time signed by District Judge Anthony W. Ishii on 1/15/2021. Case reopened. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ORLANDO VIBANCO,

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Petitioner,

Case No. 1:17-cv-00926-AWI-HBK (HC)
ORDER VACATING ORDER AND
JUDGMENT AND REOPENING CASE

v.
(Doc. Nos. 35, 36)
SHAWN HATTON,
Respondent.

ORDER GRANTING PETITIONER’S
MOTION FOR AN EXTENSION OF TIME
(Doc. No. 37)

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Petitioner Orlando Vibanco is a state prisoner proceeding in propria persona with a petition

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for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 15.) On August 28, 2020, the

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Magistrate Judge assigned to the case issued Findings and Recommendations to deny the petition.

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(Doc. No. 28.) These Findings and Recommendations were served upon all parties and contained

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notice that any objections were to be filed within thirty days from the date of service of that order.

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Petitioner was granted two extensions of time to file his objections, resulting in a filing deadline of

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November 30, 2020. (Doc Nos. 31, 33.) On December 3, 2020, the Court adopted the findings and

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recommendations in full. (Doc. No. 35.) On December 4, 2020, the order adopting the findings and

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recommendations and the judgment closing the case were docketed. (Doc. No. 35, 36.) On the same

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day, December 4, 2020, petitioner’s motion for an additional extension of time to file objections to the

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findings and recommendations was docketed. (Doc. No. 37.) Petitioner requests a further extension

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of time claiming mental health issues and law library restrictions caused by COVID-19 prevented

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him from timely filing his objections. (Id. at 2-3.) Petitioner certifies he delivered his motion to

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prison staff for mailing on November 25, 2020. (Id. at 5).

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According the Rules Governing Section 2254 Cases, a “paper filed by an inmate confined in

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an institution is timely if deposited in the institution’s internal mailing system on or before the last

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day for filing.” R. Governing Section 2254 Cases 3(d). The court deems petitioner’s motion for an

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extension of time to be filed on November 25, 2020, five days before his objections to the findings

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and recommendations were due. Under these circumstances, it is appropriate to vacate the judgment

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and reopen the case in order to give petitioner the opportunity to file his objections to the findings and

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recommendations. The Court will grant petitioner an additional thirty days to file his objections to the

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findings and recommendations.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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VACATED;
2.

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The Order Adopting the Findings and Recommendations (Doc. No. 35) is

The judgment entered on December 4, 2020 (Doc. No. 36) is VACATED and this
case is REOPENED; and

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Petitioner’s motion for an extension of time (Doc. No. 37) is GRANTED.

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Petitioner may file objections to the Magistrate Judge’s August 28, 2020 Findings

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and Recommendations (Doc. No. 28) no later than February 1, 2021.

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IT IS SO ORDERED.
Dated: January 15, 2021
SENIOR DISTRICT JUDGE

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