Duff v. Chappell

Filing 13

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/30/2012 RECOMMENDING that his 1 pro se petition for a writ of habeas corpus be dismissed without prejudice. Referred to Judge Lawrence K. Karlton; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEWEY JOE DUFF,

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Petitioner,

No. 2:12-cv-01258 LKK KJN

vs.

DEATH PENALTY CASE

WARDEN,
San Quentin State Prison,

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Respondent.

FINDINGS & RECOMMENDATIONS

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/
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Petitioner, a condemned inmate proceeding without counsel or “pro se,” initiated

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this action by filing a document entitled “Writ of Habeas Corpus” on May 9, 2012. Primarily,

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petitioner challenges the state court’s delay in addressing his state habeas claims. On May 31,

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2012, petitioner filed an incomplete application to proceed in forma pauperis. The court has

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given petitioner three opportunities to complete his application. By orders issued on June 12,

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June 25, and August 22, 2012, petitioner was advised that he must complete the paperwork for

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his in forma pauperis application or pay his filing fee in order to proceed. He has not done so.

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While the court recognizes petitioner’s frustration with the slow pace of his state

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proceedings, the court is also aware that the state proceedings are well underway. A review of

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the California Supreme Court’s docket for petitioner’s automatic appeal, People v. Duff,
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S105097, shows that petitioner’s appeal is fully briefed and awaiting a decision by the California

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Supreme Court.1 In addition, the state appellate docket shows that on October 12, 2011, the

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California Supreme Court appointed counsel to represent petitioner for purposes of filing a state

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habeas corpus petition and/or seeking clemency. The California Supreme Court’s order

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appointing counsel states that the state habeas petition will be presumed timely if it is filed within

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three years of October 12, 2011.

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Because petitioner has failed to complete his application to proceed in forma

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pauperis or pay his filing fee, IT IS HEREBY RECOMMENDED that his pro se petition for a

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writ of habeas corpus be dismissed without prejudice. See 28 U.S.C. §§ 1914(a); 1915(a).

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files

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objections, he shall also address whether a certificate of appealability should issue and, if so, why

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and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(3). Any response to the objections shall be filed and served within ten days after

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service of the objections. The parties are advised that failure to file objections within the

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Information on cases before the California Supreme Court can be found at:
http://appellatecases.courtinfo.ca.gov/.
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATE: October 30, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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duff1258.fr

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