Foss v. Martell

Filing 102

ORDER signed by Judge John A. Mendez on 09/11/12 ORDERING that petitioner's 92 Motion for Extension of Time is GRANTED; petitioner's 94 , 95 , 98 , 99 , 101 Motions for Reconsideration are all deemed timely filed; upon reconsiderat ion, the orders of the Magistrate Judge filed 05/03/12 are AFFIRMED; petitioner's 93 Motion to Defer Objections is construed as a request for an extension of time to file objections to the 05/03/12 91 Findings and Recommendations and, so con strued, is GRANTED; petitioner has 30 days to file objections to the 91 F&Rs with any reply to objections due 15 days after service of those objections; petitioner's 06/04/12 97 Request to Vacate Referral of this matter to the Magistrate Judge is DENIED. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND CHRISTIAN FOSS,

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Petitioner,

No. 2:09-cv-3551-JAM-JFM (HC)

vs.

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MIKE MARTEL, Warden,

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Respondent.

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

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corpus pursuant to 28 U.S.C. § 2254. On May 3, 2012, the magistrate judge filed an order and

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findings and recommendations. Therein, the magistrate judge denied motions to expand the

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record, for evidentiary hearing and to defer legal argument filed by petitioner, and recommended

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that the petition be denied and this court decline to issue a certificate of appealability.

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On May 16, 2012, petitioner filed a motion for a thirty day extension of time to

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file motions for reconsideration of the magistrate judge’s orders. On May 17, 2012, petitioner

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filed a motion for this court to defer objections to the findings and recommendations pending

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ruling on any motions for reconsideration. On May 23, 2012, petitioner filed a motion for

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reconsideration of the magistrate judge’s order denying his motion to defer legal argument on the

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substantive claims of the petition. On May 25, 2012, petitioner filed a motion for reconsideration

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of the magistrate judge’s order denying petitioner’s November 30, 2011 motion to expand the
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record. On May 31, 2012, respondent filed an opposition to these two motions. On June 4,

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2012, petitioner filed a request to vacate the referral to the magistrate judge. On June 12, 2012,

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petitioner filed motions for reconsideration of the magistrate judge’s order denying petitioner’s

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motions for leave to file a supplemental motion to expand the record and a second supplemental

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motion to expand the record. Finally, on June 4, 2012, petitioner filed a motion for

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reconsideration of the magistrate judge’s order denying petitioner’s motion for evidentiary

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hearing.

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After review of the record, and good cause appearing, petitioner’s May 16, 2012

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motion for extension of time will be granted and all of petitioner’s motions for reconsideration

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deemed timely filed. Pursuant to E.D. Local Rule 303(f), a magistrate judge’s orders shall be

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upheld unless “clearly erroneous or contrary to law.” Upon review of the entire file, the court

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finds that it does not appear that any of the rulings of the magistrate judge for which petitioner

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seeks reconsideration were clearly erroneous or contrary to law. The rulings will therefore be

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affirmed.

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Petitioner’s motion to defer objections will be construed as a motion for extension

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of time to file objections and, so construed, will be granted. Petitioner will be granted twenty-

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one days from the date of this order in which to file and serve objections to the findings and

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recommendations, and respondent will be granted fourteen days in which to respond to any

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objections filed by petitioner.

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Finally, on June 4, 2012, petitioner filed a document styled Request for Retention

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by District Court Judge. Therein, petitioner requests that the referral of this action to the

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assigned magistrate judge be vacated. That request will be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s May 16, 2012 motion for extension of time (Docket No. 92) is

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granted;

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2. Petitioner’s May 23, 2012 motion for reconsideration (Docket No. 94),

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petitioner’s May 25, 2012 motion for reconsideration (Docket No. 95), petitioner’s June 12, 2012

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motions for reconsideration (Docket Nos. 98 and 99), and petitioner’s June 15, 2012 motion for

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reconsideration (Docket No. 101) are all deemed timely filed;

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3. Upon reconsideration, the orders of the magistrate judge filed May 3, 2012 are
affirmed;
4. Petitioner’s May 17, 2012 motion to defer objections (Docket No. 93) is

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construed as a request for an extension of time to file objections to the May 3, 2012 findings and

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recommendations and, so construed, is granted;

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5. Petitioner is granted thirty days from the date of this order in which to file
objections to the findings and recommendations;
6. Any reply to objections shall be filed not later that fourteen days after service
of objections; and
7. Petitioner’s June 4, 2012 request to vacate referral of this matter to the

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magistrate judge (Docket No. 97) is denied.

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DATED: September 11, 2012

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/s/ John A. Mendez
UNITED STATES DISTRICT COURT JUDGE

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