Henson v. Griem

Filing 24

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.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN HENSON,

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No. 2:16-cv-1908-JAM-EFB P
Petitioner,

v.

ORDER

DARREN GRIEM,
Respondent.

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Petitioner is a former inmate proceeding without counsel with a petition 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 April 21, 2017, the magistrate judge filed findings and recommendations herein which

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

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findings and recommendations were to be filed within fourteen days. Petitioner failed to file

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timely objections and on June 29, 2017, this court adopted the findings and recommendations,

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dismissed the action because of petitioner’s failure to exhaust state court remedies, and declined

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to issue a certificate of appealability. Judgment was duly entered. ECF No. 13.

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On August 3, 2017, petitioner requested a certificate of appealability and filed belated

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objections, claiming that he was not properly served with the magistrate judge’s findings and

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recommendations. ECF No. 16, 18. The docket reflects that the findings and recommendations
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were properly served on the petitioner at his address of record. See ECF Nos. 9 & 10. However,

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in an abundance of caution, the court will reconsider the June 29, 2017 order in light of the late

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objections. See Fed. R. Civ. P. 59(e) and 60(b). So considered, the objections are overruled.

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

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court has conducted a de novo review of this case, including petitioner’s objections to the

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findings and recommendations of the magistrate judge and his request for a certificate of

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appealabilty. Having carefully reviewed the entire file, the court finds the findings and

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recommendations to be supported by the record and by proper analysis. Accordingly, the court

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will confirm the June 29, 2017 order adopting in full the findings and recommendations,

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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

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Court granted the extension on November 30, 2017, and, pursuant to the Ninth Circuit’s remand

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order, instructed that Petitioner need not file an additional notice of appeal. ECF No. 23.

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Petitioner also requested leave to proceed in forma pauperis on appeal. ECF Nos. 15.

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This request fails to satisfy all three of the requirements set forth in Rule 24(a) of the Federal

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Rules of Appellate Procedure, and is therefore denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The order entered on June 29, 2017 adopting in full the findings and

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recommendations, dismissing this action without prejudice, and declining to issue a

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certificate of appealability (ECF No. 12), is CONFIRMED.

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2. Petitioner’s request for leave to proceed in forma pauperis on appeal (ECF No. 15) is

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denied without prejudice. The Clerk of the Court is directed to serve a copy of this

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order on the United States Court of Appeals for the Ninth Circuit, and petitioner is

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hereby informed that he may file a motion to proceed in forma pauperis in the United

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States Court of Appeals for the Ninth Circuit. See Fed. R. App. P. 24(a)(5).

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DATED: December 1, 2017

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