Harris v. Gipson

Filing 51

ORDER signed by Judge Kimberly J. Mueller on 2/25/15 ORDERING that Petitioner's 48 motion for reconsideration is GRANTED. The court order 42 , and the judgment 43 are VACATED. The findings and recommendations 37 are adopted in full , with the following correction: in footnote 6 on page 5 at line 22, the text should reflect that petitioner's conviction became final for purposes of 28 U.S.C. § 2244(d)(1) (A) on 5/1/00. Respondent's 15 Motion to Dismiss is gran ted. Petitioner's Motion for Discovery 25 is denied. Petitioner's Motion to Expand the Record 32 is denied. Petitioner's motion styled as "Motion and Request for Service of Subpoena Duces Tecums" 33 is denied. Petitioner's Motion for an Evidentiary Hearing 35 is denied. The Clerk is directed to enter judgment on this order and close this case. The court DECLINES to issue the certificate of appealability. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM JAMES HARRIS,

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Petitioner,

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No. 2:12-cv-2846 KJM AC P

v.

ORDER

CONNIE GIPSON,

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Respondent.

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Petitioner is a state prisoner proceeding pro se in this habeas corpus action filed under 28

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U.S.C. § 2254. Petitioner has filed a motion for reconsideration of the April 21, 2014 order

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adopting in full findings and recommendations filed by the magistrate judge on January 6, 2014.1

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In accordance with that order, this action was dismissed as time-barred and judgment was

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entered. Petitioner seeks reconsideration on the ground that the court did not consider his timely-

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filed objections to the January 6, 2014 findings and recommendations prior to issuing the April

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21, 2014 order. The April order states that no objections had been filed.

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This case was referred to a United States Magistrate Judge as provided by 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 302.
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Petitioner was granted two thirty-day extensions of time to file objections to the January 6,

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2014 findings and recommendations, see ECF Nos. 39 and 41. He timely filed objections on

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April 10, 2014, ECF No. 44, which were entered on the docket on April 18, 2014.2 The April 21,

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2014 order states that no objections had been filed. See ECF No. 42 at 1. Good cause appearing,

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petitioner’s motion for reconsideration will be granted. In accordance with the provisions of 28

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

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including full consideration of petitioner’s objections to the findings and recommendations.

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Having carefully reviewed the file and petitioner’s objections, the undersigned finds the findings

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and recommendations to be supported by the record and by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for reconsideration, ECF No. 48, is granted.

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2. The April 21, 2014 order, ECF No. 42, and the judgment thereon, ECF No. 43, are

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vacated.

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3. The findings and recommendations filed January 6, 2014, ECF No. 37, are adopted in

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full, with the following correction: in footnote 6 on page 5 at line 22, the text should reflect that

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petitioner’s conviction became final for purposes of 28 U.S.C. § 2244(d)(1)(A) on

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May 1, 2000.

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4. Respondent’s March 21, 2013 Motion to Dismiss, ECF No. 15, is granted.

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5. Petitioner’s June 26, 2013 Motion for Discovery, ECF No. 25, is denied.

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6. Petitioner’s August 14, 2013 Motion to Expand the Record, ECF No. 32, is denied.

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7. Petitioner’s August 14, 2013 motion styled as “Motion and Request for Service of

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Subpoena Duces Tecums”, ECF No. 33, is denied.

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8. Petitioner’s September 3, 2013 Motion for an Evidentiary Hearing, ECF No. 35, is

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denied.

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Under the second order, ECF No. 41, petitioner’s objections were due thirty days from March
12, 2014. The objections were entered on the docket on April 18, 2014, ECF No. 44. Applying
the mailbox rule announced in Houston v. Lack, 487 U.S. 266 (1988), petitioner’s objections were
timely filed.
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9. The Clerk of Court is directed to enter judgment on this order and close this case.

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10. The court declines to issue the certificate of appealability referenced in 28 U.S.C.

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§ 2253.

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DATED: February 25, 2015.

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UNITED STATES DISTRICT JUDGE

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