Haller v. Biter
Filing
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ORDER signed by Judge William B. Shubb on 12/1/11 ORDERING that the court's November 14, 2011 order is Vacated; the Findings and Recommendations filed August 2, 2011, are again Adopted in Full; Petitioner's renewed motion for a stay and abeyance 10 is Denied; this matter is referred back to the assigned magistrate judge for further proceedings on petitioner's original petition for writ of habeas corpus. (Becknal, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JAMES D. HALLER,
Petitioner,
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vs.
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No. CIV S-10-3446 WBS DAD P
WARDEN BITER,
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Respondent.
ORDER
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On August 2, 2011, the magistrate judge filed findings and recommendations
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herein recommending that petitioner’s renewed motion for stay and abeyance be denied and that
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the matter be referred back to the assigned Magistrate Judge for further proceedings. Those
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findings and recommendations were served on petitioner and contained notice that any
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objections to the findings and recommendations were to be filed within twenty-one days. On
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September 2, 2011, the magistrate judge granted petitioner a sixty-day extension of time to file
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objections to those findings and recommendations. The sixty-day period expired, and petitioner
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had not filed objections to the findings and recommendations. On November 14, 2011, the court
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adopted the magistrate judge’s findings and recommendations in full and referred this matter
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back to the magistrate judge for further proceedings.
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On November 10, 2011, petitioner filed a document styled “Motion for Stay &
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Abeyance” in one of his previously-closed cases. See Case No. CIV 08-1997 DFL GGH. On
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November 22, 2011, Magistrate Judge Gregory H. Hollows reviewed the motion and determined
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that petitioner erroneously wrote Case No. CIV 08-1997 DFL GGH on the motion. Magistrate
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Judge Hollows ordered the Clerk of the Court to remove petitioner’s motion from Case No. CIV
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08-1997 DFL GGH and file it in this case.
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The undersigned has reviewed petitioner’s motion and will construe it as his
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belated objections to the magistrate judge’s August 2, 2011 findings and recommendations.
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Under these circumstances, and in the interest of justice, the undersigned will vacate its
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November 14, 2011 order and consider petitioner’s objections as if they were timely filed in this
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case.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule
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304, this court has conducted a de novo review of this case. Having carefully reviewed the
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entire file, the court finds the findings and recommendations to be supported by the record and
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by proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The court’s November 14, 2011 order is vacated;
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2. The findings and recommendations filed August 2, 2011, are again adopted in
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full;
3. Petitioner’s renewed motion for a stay and abeyance (Doc. No. 10) is denied;
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and
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4. This matter is referred back to the assigned magistrate judge for further
proceedings on petitioner’s original petition for writ of habeas corpus.
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DATED:
December 1, 2011
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