Brisette v. California Supreme Court et al

Filing 34

ORDER signed by District Judge Garland E. Burrell, Jr. on 6/15/2016 FINDINGS AND RECOMMENDATIONS 26 are ADOPTED in FULL; and Petitioner's 22 Motion for Preliminary Injunction is DENIED; the Court DECLINES to issue the Certificate of Appealability referenced in 28:2253.(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PHILLIP BRISETTE,

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No. 2:16-cv-0208 GEB GGH P

Petitioner,

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v.

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ERIC ARNOLD,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 27, 2016, the magistrate judge filed findings and recommendations herein which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Both parties have filed

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objections to the findings and recommendations, and respondent has filed a reply to petitioner’s

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objections.1
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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Petitioner filed an untimely reply (ECF No. 27) to respondent’s opposition to his motion after
the findings and recommendations were issued; see E.D.L.R. 230(l); however, it has been
considered along with his objections.
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court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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court finds the findings and recommendations to be supported by the record and by proper

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analysis.2

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed April 27, 2016, are adopted in full; and

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2. Petitioner’s motion for preliminary injunction, filed March 18, 2016 (ECF No. 22), is

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denied.

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3. The court declines to issue the certificate of appealability referenced in 28 U.S.C. §
2253.
Dated: June 15, 2016

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Respondent objects to the magistrate judge’s allegedly broad characterization of petitioner’s
claim. The undersigned views the findings and recommendations as merely characterizing the
nature of the case, and not the claim, which will be clearly defined by the magistrate judge in
addressing the pending motion to dismiss, based on construction of the amended petition.
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