Gehrke v. Sullivan

Filing 23

ORDER Vacating Order. Court vacates the 2/1/2008 20 Clerk's Judgment, 19 Order Adopting Report and Recommendations and 20 Clerk's Judgment pursuant to FRCP 60(a), which authorizes a court to grant relief from judgment arising from a mistake or omission. Petitioner may file Written Objections to R&R by 3/10/2008. Replies due by 3/24/2007. Signed by Judge Irma E. Gonzalez on 2/13/2008. (jah)

Gehrke v. Sullivan

Doc. 23

Case 3:07-cv-00575-IEG-LSP

Document 23

Filed 02/13/2008

Page 1 of 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JESSE LYLE GEHRKE vs. R. SULLIVAN, Warden, Respondent. Petitioner, CASE NO. 07cv0575 IEG (LSP) ORDER (1) VACATING THIS COURT'S PREVIOUS ORDER OF FEBRUARY 1, 2008; (2) PERMITTING PETITIONER TO FILE OBJECTIONS TO REPORT AND RECOMMENDATIONS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

It has recently come to the Court's attention that on December 27, 2007, the Court received from Petitioner a "Petition for Issuance of Certificate of Probable Cause" and a "Notice of Appeal." In these documents, Petitioner incorrectly characterizes Magistrate Judge Leo Papas's November 20, 2007 Report and Recommendation ("the R&R") as a "final judgment" and seeks permission to present an appeal to the Ninth Circuit.1 Because no final order had issued in the matter at the time, Petitioner's Petition for Issuance of a Certificate of Probable Cause and Notice of Appeal were premature. As a result, though incorrectly, the documents were not docketed at the time of their receipt but instead were held until such time as this Court issued its order, dated February 1, 2008, adopting the Report & Recommendations and denying the Petition for Writ of Habeas Corpus. Had the documents been The R&R set December 20, 2007 as the date by which to file objections and the documents reflect Petitioner signed [wait to see the envelop] -107cv575
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Dockets.Justia.com

Case 3:07-cv-00575-IEG-LSP

Document 23

Filed 02/13/2008

Page 2 of 2

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docketed upon receipt, as they should have been, thus making the Court aware of Petitioner's ineffectual attempt at challenging the Magistrate Judge's Report and Recommendations, the Court would have alerted Petitioner to his error and instructed him once again to file written objections with the Court. IT IS ORDERED: Now cognizant that Petitioner attempted to respond in some manner to the Report and Recommendations, the Court VACATES its February 1, 2008 Order and Judgment pursuant to Fed. Rule of Civil Procedure 60(a) which authorizes a court to grant relief from a judgment arising from a mistake or omission. No later than Monday, March 10, 2008, Petitioner may file written objections to the Magistrate Judge's November 20, 2007 Report and Recommendations and serve a copy on Respondent. The document should be captioned "Objections to Report and Recommendation." These objections are distinct from a request for permission to appeal and should contain reasons why this Court should not adopt the Magistrate Judge's factual or legal conclusions. Any reply to the objections by Respondent shall be filed with the Court and served on Petitioner no later than Monday, March 24, 2007. Petitioner is advised that failure to file objections with the specified time may waive the right to raise those objections on appeal.

IT IS SO ORDERED.

DATED: February 13, 2008 IRMA E. GONZALEZ, Chief Judge United States District Court

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07cv575