Cross v. Corona

Filing 64

ORDER by Senior Judge Lawrence K. Karlton on 4/27/2010 ORDERING that the court DENIES the following: Petitioner's 58 motion for transcripts, Petitioner's 63 motion for a stay, etc., Dkt. No. 63. Petitioner's 56 57 60 filings, which generally seek reconsideration of prior orders. (Duong, D) Modified on 4/29/2010 (Duong, D).

1 2 3 4 5 6 7 8 9 10 GEORGE E. CROSS, 11 NO. CIV. S-09-0488 LKK/KJM P 12 13 14 15 Respondents. 16 17 18 19 20 21 22 23 24 25 26 / Petitioner, proceeding in pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court granted v. ORDER MICHAEL CORONA, et al., Petitioner, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

respondents' motion to dismiss in full on March 31, 2010, finding that the petition was untimely and declining to issue a certificate of appealability. Petitioner has subsequently filed a document titled "Request for [Re]Consideration of Magistrate Judge Ruling" and "Requested Stay of Proceedings and Ex Parte Communication Request." filed April 5, 2010 (Dkt. No. 63). Document

In addition, petitioner filed

seven documents which were docketed on March 29, 2010, none of 1

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which were explicitly discussed in the court's order dismissing the case. (Dkt. Nos. 54-60). These include a "motion for transcript

order and copy of writ" (Dkt. No. 58), a "notice of appeal" (Dkt. No. 54), and various other documents effectively seeking

reconsideration of prior orders and discussing the conditions in which petitioner is currently housed.1 Many of these filings discuss petitioner's current custody. In this case, petitioner has variously been referred to as a county jail inmate and as a state prisoner. It appears that petitioner

is a state prisoner currently housed in county jail in conjunction criminal proceedings in an unrelated case. Prior to denial of

petitioner's underlying habeas petition, petitioner moved this court for an "investigation" and various injunctive relief in connection with these proceedings, which this court denied. See

Order of March 9, 2010 (denying petitioner's request for a writ of mandate), Order of March 31, 2010 (denying petitioner's request for an investigation). Insofar as petitioner currently requests transcripts, he requests that the court pay for copies of transcripts of state court proceedings in the unrelated state criminal matter and that the court provide additional copies of the documents issued in this case. These documents are apparently to be used in an appeal of Assuming that the of state court

this court's denial of the habeas petition. court
1

has

the

power

to

order

transcripts

Petitioner's "motion to withdraw exhibits" (Dkt. No. 55) will be addressed in the first instance by the magistrate judge. 2

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proceedings, the court declines to do so.

When a party asks the

court to order the government to pay for transcripts of proceedings before the subject court, the court may do so only where "the appeal is not frivolous (but presents a substantial question)." 28 U.S.C. § 753(f); Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 1984). It appears that this standard may be

appropriately applied here. certificate of appealability.

This court declined to issue a In so doing, the court determined

that an appeal would not present a substantial question. Insofar as petitioner continues to argue that his current conditions of confinement have made it difficult to litigate this case and therefore entitle petitioner to tolling, the magistrate judge previously considered whether conditions prior to the filing of the petition entitled petitioner to tolling, and this court accepted the magistrate judge's recommendation that they did not. Petitioner asserts that this court wrongly failed to consider his objections to the various findings and recommendations in this case. 8, As to the findings and recommendations entered on January (Dkt. No. 32) petitioner filed numerous documents

2010,

thereafter, and the court reviewed these documents, although none were postured as objections to the findings and recommendations. The court then adopted the findings and recommendations by order filed March 9, 2010 (Dkt. 44). In the interim, the magistrate

judge filed further findings and recommendations on March 2, 2010 (Dkt. No. 39). Petitioner did file objections to these findings and recommendations, which the court considered as explained by the 3

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order of March 31, 2010. This sequence of events apparently confused petitioner,

causing him to mistakenly believe that March 9, 2010 order of this court pertained to Dkt. No. 39 rather than Dkt. No. 32, thereby adopting Dkt. No. 39 without affording petitioner with an

opportunity to respond. As should be clear from the March 31, 2010 order, petitioner was afforded an opportunity to object to the March 2, 2010 findings and recommendations (Dkt. No. 39), and the court considered those objections. Accordingly, the court DENIES the following: 1. 2. 3. Petitioner's motion for transcripts, Dkt. No. 58. Petitioner's motion for a stay, etc., Dkt. No. 63. Petitioner's filings at Dkt. Nos. 56, 57, and 60, which generally seek reconsideration of prior orders. IT IS SO ORDERED. DATED: April 27, 2010.

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