Garcia v. Clark

Filing 109

ORDER ADOPTING 79 FINDINGS AND RECOMMENDATIONS signed by Judge Garland E. Burrell, Jr on 6/13/12 VACATING the 82 Order issued on 3/1/12; DENYING 91 and 103 Motions for Reconsideration as unnecessary; GRANTING 83 Motion for acceptance of late filing of objections; the 53 and 70 Motions to Amend are DENIED; the Court declines to issue COA. (Manzer, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIO FLAVIO GARCIA,

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Petitioner,

No. CIV S-10-0968 GEB DAD P

vs.
KEN CLARK, Warden,
Respondent.

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 December 28, 2011, the Magistrate Judge assigned to

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this case issued an order and findings and recommendations which granted petitioner’s motion to

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substitute the correct respondent in this action, denied petitioner’s motion for judicial notice, and

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recommended that petitioner’s March 21, 2011 motion for leave to amend and his June 29, 2011

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motion to amend be denied. Petitioner was advised that objections to the findings and

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recommendations could be filed within twenty-one days. On January 20, 2012, petitioner was

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granted an extension of time until February 27, 2012 to file his objections. Petitioner did not file

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objections to the findings and recommendations. On March 1, 2012, the undersigned issued an

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order adopting the December 28, 2011 findings and recommendations and denying petitioner’s

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March 21, 2011 motion for leave to amend and his June 29, 2011 motion to amend.

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On March 2, 2012, petitioner filed objections to the December 28, 2011 findings

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and recommendations and a document entitled “Motion for Acceptance of late filing of

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Objections.” In the motion, petitioner explains that he mailed his objections to this court in a

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timely manner but the post office damaged the document and sent it back to him on

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approximately February 29, 2012. Petitioner states that he immediately mailed the objections

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back to this court.1

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On March 14, 2012, petitioner filed a motion for reconsideration of this court’s

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March 1, 2012 order. Therein, petitioner explains that his objections to the December 28, 2011

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findings and recommendations were filed late “through no fault of his own.” He requests that the

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March 1, 2012 order be “reversed” and that this court consider his objections to the findings and

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recommendations. On May 29, 2012, petitioner filed another motion for reconsideration of the

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March 1, 2012 order.

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This court has now considered petitioner’s March 2, 2012 objections to the

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December 28, 2011 findings and recommendations and, in accordance with the provisions of 28

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U.S.C. § 636(b)(1)(C) and Local Rule 304, has conducted a de novo review of this case. Having

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carefully reviewed the entire file, the court finds the findings and recommendations to be

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supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The March 1, 2012 order issued by this court (Dckt. No. 82) is vacated;

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2. Petitioner’s March 14, 2012 motion for reconsideration (Dckt. No. 91) is

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denied as unnecessary;

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3. Petitioner’s May 29, 2012 motion for reconsideration (Dckt. No. 103) is denied

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as unnecessary;

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Also on March 2, 2012, petitioner filed a notice of appeal of the March 1, 2012 order.
On May 10, 2012, the Court of Appeals for the Ninth Circuit dismissed that appeal for lack of
jurisdiction.

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4. Petitioner’s March 2, 2012 motion for acceptance of late filing of objections
(Dckt. No. 83) is granted;

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5. The findings and recommendations filed December 28, 2011, are adopted in
full;

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6. Petitioner’s March 21, 2011 motion to amend (Doc. No. 53) is denied;

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7. Petitioner’s June 29, 2011 motion to amend (Doc. No. 70) is denied; and

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8. For the reasons set forth in the December 28, 2011 findings and

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recommendations, the court declines to issue a certificate of appealability.

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Dated: June 13, 2012

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GARLAND E. BURRELL, JR.
United States District Judge