Harris v. Gipson

Full title: WILLIAM JAMES HARRIS, Petitioner, v. CONNIE GIPSON, Respondent.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Feb 25, 2015

2:12-cv-2846 KJM AC P (E.D. Cal. Feb. 25, 2015)

Opinion

WILLIAM JAMES HARRIS, Petitioner, v. CONNIE GIPSON, Respondent. No. 2:12-cv-2846 KJM AC P United States District Court, E.D. California. February 25, 2015

          ORDER

          KIMBERLY J. MUELLER, District Judge.

         Petitioner is a state prisoner proceeding pro se in this habeas corpus action filed under 28 U.S.C. § 2254. Petitioner has filed a motion for reconsideration of the April 21, 2014 order adopting in full findings and recommendations filed by the magistrate judge on January 6, 2014.¹ In accordance with that order, this action was dismissed as time-barred and judgment was entered. Petitioner seeks reconsideration on the ground that the court did not consider his timely-filed objections to the January 6, 2014 findings and recommendations prior to issuing the April 21, 2014 order. The April order states that no objections had been filed.

1 This case was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         Petitioner was granted two thirty-day extensions of time to file objections to the January 6, 2014 findings and recommendations, see ECF Nos. 39 and 41. He timely filed objections on April 10, 2014, ECF No. 44, which were entered on the docket on April 18, 2014.² The April 21, 2014 order states that no objections had been filed. See ECF No. 42 at 1. Good cause appearing, petitioner's motion for reconsideration will be granted. 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 full consideration of petitioner's objections to the findings and recommendations. Having carefully reviewed the file and petitioner's objections, the undersigned finds the findings and recommendations to be supported by the record and by proper analysis.

2 Under the second order, ECF No. 41, petitioner's objections were due thirty days from March 12, 2014. The objections were entered on the docket on April 18, 2014, ECF No. 44. Applying the mailbox rule announced in Houston v. Lack, 487 U.S. 266 (1988), petitioner's objections were timely filed.

         Accordingly, IT IS HEREBY ORDERED that:

         1. Petitioner's motion for reconsideration, ECF No. 48, is granted.

         2. The April 21, 2014 order, ECF No. 42, and the judgment thereon, ECF No. 43, are vacated.

         3. The findings and recommendations filed January 6, 2014, ECF No. 37, are adopted in full, with the following correction: in footnote 6 on page 5 at line 22, the text should reflect that petitioner's conviction became final for purposes of 28 U.S.C. § 2244(d)(1)(A) on May 1, 2000.

         4. Respondent's March 21, 2013 Motion to Dismiss, ECF No. 15, is granted.

         5. Petitioner's June 26, 2013 Motion for Discovery, ECF No. 25, is denied.

         6. Petitioner's August 14, 2013 Motion to Expand the Record, ECF No. 32, is denied.

         7. Petitioner's August 14, 2013 motion styled as "Motion and Request for Service of Subpoena Duces Tecums", ECF No. 33, is denied.

         8. Petitioner's September 3, 2013 Motion for an Evidentiary Hearing, ECF No. 35, is denied.

         9. The Clerk of Court is directed to enter judgment on this order and close this case.

         10. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253.