McDonald v. Haaws

Filing 47

ORDER Denying As Premature (Doc. 46 ) Application For Certificate of Appealability. Petitioner is granted an extension of time in which to file objections to (Doc. 44 ) the Magistrate Judge's Report and Recommendation. Any objections to the R&R are due by 3/28/2011. Signed by Judge M. James Lorenz on 2/28/2011. (All non-registered users served via U.S. Mail Service) (srm)

-PCL McDonald v. Cate

Doc. 47

1 2 3 4 5 6 7 8 9 10 11 JOSEPH HILTON McDONALD, 12 13 v. 14 E.B. HAAWS, 15 16 17 Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 08cv652 L(PCL) ORDER DENYING AS PREMATURE APPLICATION FOR CERTIFICATE OF APPEALABILITY [doc. #46] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On February 24, 2011, petitioner Joseph Hilton McDonald, a state prisoner seeking a writ

18 of habeas corpus under 28 U.S.C. § 2254, filed a notice of appeal and an application for a 19 certificate of appealability. [doc. nos. 45, 46]. Both documents are premature. 20 This action was referred to United States Magistrate Judge Peter C. Lewis for a report and

21 recommendation ("Report") under 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 22 72. On February 8, 2011, Magistrate Judge Lewis filed his Report which ordered in part that: 23 24 25 Report at 60. 26 A magistrate judge may not enter a dispositive order under 28 U.S.C. § 636. Instead, the no later than February 25, 2011 any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

27 statute provides that dispositive matters may be referred to a magistrate judge but the magistrate 28 judge must submit a report and recommendation to the assigned district court judge for
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1 determination of the dispositive motion. This is also noted in Federal Rule of Civil Procedure 2 72(b): 3 4 5 6 7 8 9 10 11 12 13 14 Accordingly, a time must be provided for the parties to file objections to the Report as (b) Dispositive Motions and Prisoner Petitions. (1) Findings and Recommendations. A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense or a prisoner petition challenging the conditions of confinement. A record must be made of all evidentiary proceedings and may, at the magistrate judge's discretion, be made of any other proceedings. The magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact. The clerk must promptly mail a copy to each party. (2) Objections. Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party's objections within 14 days after being served with a copy. Unless the district judge orders otherwise, the objecting party must promptly arrange for transcribing the record, or whatever portions of it the parties agree to or the magistrate judge considers sufficient. (3) Resolving Objections. The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

15 petitioner has been in this case. Once the time has past for the filing of objections, a district 16 judge "may accept, reject, or modify the recommended disposition" of a magistrate judge on a 17 dispositive matter. FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). "[T]he district judge 18 must determine de novo any part of the [report and recommendation] that has been properly 19 objected to." FED. R. CIV. P. 72(b)(3). But "[t]he statute makes it clear that the district judge 20 must review the magistrate judge's findings and recommendations de novo if objection is made, 21 but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 22 banc), cert denied, 540 U.S. 900 (2003)); see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 23 (9th Cir. 2005). "Neither the Constitution nor the statute requires a district judge to review, de 24 novo, findings and recommendations that the parties themselves accept as correct." 25 Reyna-Tapia, 328 F.3d at 1121. 26 Rather than file timely objections to the Report, petitioner filed a notice of appeal and

27 application for a certificate of appealability. But the district court has not yet considered the 28 magistrate judge's recommendation found in the Report. Because there is no appealable order
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1 filed, the appeal is premature. Petitioner is also advised that the question of whether a Certificate 2 of Appealability should issue will be determined at the time the Court accepts, rejects or 3 modifies the recommended disposition of the magistrate judge; therefore, petitioner is not 4 required to apply for the Certificate of Appealability. 5 It appears petitioner, who is appearing pro se, has misunderstood the requirement of filing

6 objections prior to the district court reviewing the Report and entering a dispositive order from 7 which an appeal may be taken. Petitioner therefore will be given additional time in which to file 8 objections prior to the district court's review of the Report. 9 10 11 12 13 14 15 16 2. Based on the foregoing, IT IS ORDERED: 1. Petitioner's application for a certificate of appealability is denied as premature; and Petitioner is granted an extension of time in which to file objections to the magistrate judge's Report and Recommendation filed on February 8, 2011. Any objections to the Report and Recommendation shall be filed and served on opposing counsel on or before March 28, 2011. IT IS SO ORDERED.

17 DATED: February 28, 2011 18 19 20 COPY TO: 21 HON. PETER C. LEWIS UNITED STATES MAGISTRATE JUDGE 22 23 ALL PARTIES/COUNSEL 24 25 26 27 28
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M. James Lorenz United States District Court Judge