Henson v. Griem
ORDER signed by District Judge John A. Mendez on 12/01/17 ORDERING that the 06/29/17 12 Order Adopting Findings and Recommendations is CONFIRMED; the 15 Motion to Proceed IFP is DENIED without prejudice; petitioner may file IFP Motion with USCA (cc: USCA). (Benson, A.)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:16-cv-1908-JAM-EFB P
Petitioner is a former inmate proceeding without counsel with a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 21, 2017, the magistrate judge filed findings and recommendations herein which
were served on petitioner and which contained notice to petitioner that any objections to the
findings and recommendations were to be filed within fourteen days. Petitioner failed to file
timely objections and on June 29, 2017, this court adopted the findings and recommendations,
dismissed the action because of petitioner’s failure to exhaust state court remedies, and declined
to issue a certificate of appealability. Judgment was duly entered. ECF No. 13.
On August 3, 2017, petitioner requested a certificate of appealability and filed belated
objections, claiming that he was not properly served with the magistrate judge’s findings and
recommendations. ECF No. 16, 18. The docket reflects that the findings and recommendations
were properly served on the petitioner at his address of record. See ECF Nos. 9 & 10. However,
in an abundance of caution, the court will reconsider the June 29, 2017 order in light of the late
objections. See Fed. R. Civ. P. 59(e) and 60(b). So considered, the objections are overruled.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
court has conducted a de novo review of this case, including petitioner’s objections to the
findings and recommendations of the magistrate judge and his request for a certificate of
appealabilty. Having carefully reviewed the entire file, the court finds the findings and
recommendations to be supported by the record and by proper analysis. Accordingly, the court
will confirm the June 29, 2017 order adopting in full the findings and recommendations,
dismissing this action without prejudice, and declining to issue a certificate of appealability.
Petitioner requested an extension of time to file a notice of appeal. ECF No. 17. The
Court granted the extension on November 30, 2017, and, pursuant to the Ninth Circuit’s remand
order, instructed that Petitioner need not file an additional notice of appeal. ECF No. 23.
Petitioner also requested leave to proceed in forma pauperis on appeal. ECF Nos. 15.
This request fails to satisfy all three of the requirements set forth in Rule 24(a) of the Federal
Rules of Appellate Procedure, and is therefore denied.
Accordingly, IT IS HEREBY ORDERED that:
1. The order entered on June 29, 2017 adopting in full the findings and
recommendations, dismissing this action without prejudice, and declining to issue a
certificate of appealability (ECF No. 12), is CONFIRMED.
2. Petitioner’s request for leave to proceed in forma pauperis on appeal (ECF No. 15) is
denied without prejudice. The Clerk of the Court is directed to serve a copy of this
order on the United States Court of Appeals for the Ninth Circuit, and petitioner is
hereby informed that he may file a motion to proceed in forma pauperis in the United
States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5).
DATED: December 1, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?