Johnson v. Runnels, et al

Filing 82

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 1/22/2015 ORDERING that, based on the retirement of the Honorable Lawrence K. Karlton, the Clerk shall reassign this action to a new district judge; and RECOMMENDI NG that petitioner's 80 motion for relief from judgment be denied. Reassigned and referred to Judge John A. Mendez; the new case number is 2:04-cv-0253 JAM KJN (HC); Objections to the findings and recommendations due within 14 days. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

BYRON EUGENE JOHNSON,

12

Petitioner,

13
14

No. 2:04-cv-0253 LKK KJN P

v.
D.L. RUNNELS, et al.,

15

ORDER AND FINDINGS AND
RECOMMENDATIONS

Respondent.

16
Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

17
18

corpus pursuant to 28 U.S.C. § 2254. On January 14, 2015, petitioner filed a motion for a relief

19

from judgment pursuant to Federal Rule of Civil Procedure 60. (ECF No. 80). In this motion,

20

petitioner alleges that this court failed to process his appeal from the judgment entered on March

21

28, 2011. For the reasons stated herein, the undersigned recommends that petitioner’s motion be

22

denied.

23

Court records indicate that on December 14, 2010, the undersigned recommended that

24

petitioner’s application for a petition for writ of habeas corpus be denied. (ECF No. 63.) On

25

March 2, 2011, petitioner filed an appeal to the Ninth Circuit Court of Appeals from the findings

26

and recommendations. (ECF No. 67.) On March 31, 2011, the Clerk of the Court processed this

27

appeal to the Ninth Circuit. (ECF No. 72.)

28

////
1

1

On March 28, 2011, the Honorable Lawrence K. Karlton adopted the findings and

2

recommendations and judgment was entered. (ECF Nos. 69, 70.) On April 6, 2011, petitioner

3

filed his notice of appeal from the judgment. (ECF No. 76.) The Clerk of the Court for this court

4

processed the appeal from the judgment to the Ninth Circuit. (ECF No. 77.)

5
6

Because the court docket reflects that the Clerk of the Court processed petitioner’s appeal
from the judgment, petitioner’s motion for relief from judgment should be denied.1

7

Accordingly, IT IS HEREBY ORDERED that, based on the retirement of the Honorable

8

Lawrence K. Karlton, the Clerk of the Court is directed to reassign this action to a new district

9

judge;

10
11

IT IS HEREBY RECOMMENDED that petitioner’s motion for relief from judgment
(ECF No. 80) be denied.

12

These findings and recommendations are submitted to the United States District Judge

13

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

14

after being served with these findings and recommendations, any party may file written

15

objections with the court and serve a copy on all parties. Such a document should be captioned

16

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

17

objections shall be filed and served within fourteen days after service of the objections. The

18

parties are advised that failure to file objections within the specified time may waive the right to

19

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

20

Dated: January 22, 2015

21
22
23
24
25
26
27
28

John253.ord
1

On May 10, 2011, the Ninth Circuit dismissed petitioner’s appeal from the findings and
recommendations for lack of jurisdiction. (ECF No. 75.) While this court’s docket contains no
record regarding the Ninth Circuit’s resolution of petitioner’s appeal from the judgment, this
court recently contacted the Ninth Circuit regarding the appeal from the judgment. All future
inquiries by petitioner regarding this appeal should be made to the Ninth Circuit.
2