Brown v. Busby

Filing 40

ORDER Rejecting Petitioner's Request for Leave to File Objections to Report and Recommendation. Signed by Judge Larry Alan Burns on 11/10/11.(All non-registered users served via U.S. Mail Service)(kaj)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DESMOND BROWN,

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CASE NO. 10CV2302-LAB
Petitioner,

ORDER REJECTING
PETITIONER’S REQUEST FOR
LEAVE TO FILE OBJECTIONS
TO REPORT AND
RECOMMENDATION

vs.
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MATTHEW CATE, Secretary of the
California Department of Corrections and
Rehabilitation,
Respondent.

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On November 9, the Court signed an order denying Petitioner Desmond Brown’s

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motion for leave to seek reconsideration.

That order was entered in the docket on

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November 10. On November 10, the Court received in chambers a motion that the Clerk’s

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office had apparently received on October 28, and failed to timely forward to chambers.

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That motion is being rejected separately by discrepancy order. Because this order affects

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the contents of the Court’s earlier order of November 10 (Docket no. 38), however, some

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discussion and explanation are in order.

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The rejected document asks the Court to reopen his case, and seeks leave to file

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objections to the Court’s order denying the petition. The Court lacks jurisdiction to do this,

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because Brown also, by a document also dated October 25 and sent in a separate mailing,

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filed a notice of appeal. See Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997) (notice of

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10CV2302

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appeal divests the trial court of jurisdiction over the matters appealed). Also attached to the

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request for leave to file objections are the proposed objections. Both documents contain

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Brown’s own version of the record and the history of the case, which the Court does not

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adopt.

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Brown’s proposed objections in part recite arguments he raised earlier in these

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proceedings, which the Court found inadequate to support issuance of the writ. Even if

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those objections had been timely filed, the outcome would have been the same. The

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objections also attempt to show he is entitled to statutory tolling, arguing that any petition

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filed within six months of denial of the previous petition is presumptively timely filed, and he

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was not required to explain the delay. Brown is able to cite no authority for this argument,

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which is foreclosed by binding authority the Court cited to both in its order denying the writ,

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and several other orders. And even if the Court were to accept this untenable argument, his

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petition would still be time-barred by five months.

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Brown also argues he is actually innocent. In addition to the evidentiary analysis

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the Court already provided in earlier orders, it bears mentioning that the state courts

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determined his actual innocence claim, based on the supposedly newly-discovered

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evidence, was not factually strong. See Lodgment 10 (California Superior Court order

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denying petition for writ of habeas corpus), at 3:20–23 (“Here, the evidence petitioner

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presents at most would have raised a more difficult question for the trier of fact . . . . [T]he

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declarations do not undermine the entire structure of the case upon which the

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prosecution was based.”); Lodgment 16 (California Court of Appeals’ order adopting

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superior court’s reasoning).

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The submitted objections are REJECTED for filing, and the discrepancy order
accompanying them provides further instructions for the Clerk’s office.
IT IS SO ORDERED.
DATED: November 10, 2011

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HONORABLE LARRY ALAN BURNS
United States District Judge
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10CV2302