Witkin v. Yates

Filing 87

ORDER signed by Magistrate Judge Dale A. Drozd on 06/18/13 ordering petitioner's 03/12/13 motion for reconsideration 74 is denied. Petitioner's 03/13/13 motion for injunctive relief 75 is denied without prejudice. Petitioner's mo tion for extension of time 76 is denied. Petitioner's 04/01/13 motion for recusal 78 is denied. Petitioner's 04/01/13 and 04/02/13 motions to proceed in forma pauperis 81 and 83 are granted. The clerk of the court is directed to send a copy of this order to the United States Court of Appeals for the Ninth Circuit. (cc: USCA, 9th circuit) (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL AARON WITKIN,

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Petitioner,

No. CIV S-10-0091 GEB DAD P

vs.
JAMES A. YATES, 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. Petitioner challenges a judgment of conviction entered

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against him in the Sacramento County Superior Court in 2005 for resisting an executive officer

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by use of force and violence in violation of California Penal Code § 69. On January 30, 2013,

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this court issued findings and recommendations recommending, inter alia, that this action be

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dismissed as barred by the applicable statute of limitations.1 On February 15, 2013, petitioner

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filed objections to those findings and recommendations (ECF No. 70), and on February 26, 2013,

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petitioner filed an amendment to those objections (ECF No. 71). On March 6, 2013, the assigned

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District Judge adopted the findings and recommendations in full (ECF No. 72). Judgment was

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Specifically, in relevant part the court recommended that respondent’s August 16, 2010
motion to dismiss this action as time-barred (ECF No. 18) be granted.
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entered on the same day (ECF No. 73). On March 12, 2013, petitioner filed a motion for

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reconsideration by this court of the findings and recommendations in light of his February 15,

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2013 and February 26, 2013 objections (ECF No. 74). The January 30, 2013 findings and

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recommendations have been adopted in full by the district court after de novo review of this

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action, including the objections to which petitioner refers in the present motion. (See Order filed

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Mar. 6, 2013 (ECF No. 72).)

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Petitioner’s motion is signed and dated March 10, 2013. Although it is not clear,

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it does not appear that the motion was prepared after petitioner received the district court’s order

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adopting the findings and recommendations in full. Petitioner’s motion for reconsideration by

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this court is mooted by the district court’s March 6, 2013 order adopting the findings and

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recommendations. Petitioner’s motion for reconsideration will therefore be denied.

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On March 13, 2013. petitioner filed a motion for extension of time to file a notice

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of appeal (ECF No. 78). On April 3, 2013, petitioner timely filed a notice of appeal (ECF No.

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82), which has been processed to the United States Court of Appeals for the Ninth Circuit and is

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pending before that court as USCA Case Number 13-15646. Petitioner’s motion for extension of

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time filed with this court is therefore moot and will be denied.

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On March 13, 2013, petitioner also filed a motion for preliminary injunction and

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temporary restraining order (ECF No. 75). Therein petitioner seeks injunctive relief concerning

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his right of access to the courts. As noted above, judgment in this action was entered on March

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6, 2013 and jurisdiction over this action was transferred to the United States Court of Appeals for

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the Ninth Circuit when petitioner filed his notice of appeal. See Griggs v. Provident Consumer

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Discount Co., 459 U.S. 56, 58 (1982). This court does not have jurisdiction to act on the motion

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for injunctive relief in this action. For that reason, the motion will be denied without prejudice.

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On April 1, 2013, petitioner filed a motion seeking the recusal of the undersigned

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pursuant to 28 U.S.C. § 455 (ECF No. 78). Petitioner has not shown grounds that warrant or

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require such recusal. Accordingly, that motion will be denied.
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Finally, petitioner has filed two motions for leave to proceed in forma pauperis on

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appeal (ECF Nos 81 and 83.) Petitioner paid the filing fee in this court. Examination of the in

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forma pauperis application reveals that petitioner is unable to afford the costs of suit.

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Accordingly, the motions to proceed in forma pauperis will be granted. See 28 U.S.C.

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§ 1915(a).2

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

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1. Petitioner’s March 12, 2013 motion for reconsideration (ECF No. 74) is

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denied;

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2. Petitioner’s March 13, 2013 motion for injunctive relief (ECF No. 75) is
denied without prejudice;

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3. Petitioner’s March 13, 2013 motion for extension of time (ECF No. 76) is
denied;

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4. Petitioner’s April 1, 2013 motion for recusal (ECF No. 78) is denied;

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5. Petitioner’s April 1, 2013 and April 2, 2013 motions to proceed in form

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pauperis (ECF Nos. 81 and 83) are granted; and

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6. The Clerk of the Court is directed to send a copy of this order to the United

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States Court of Appeals for the Ninth Circuit.

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DATED: June 18, 2013.

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DAD:12
witk0091.mos

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The decision to grant leave to proceed in forma pauperis on appeal is not inconsistent with
the district court’s decision to decline to issue a certificate of appealability in this action. See
Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977).
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