Opinion
Decided February 26, 2015.
Benito Acuna, Petitioner, Pro se, Corcoran, CA.
For F Foulk, (A) Warden, Respondent: David C Cook, Office of Attorney General, Los Angeles, CA.
ORDER GRANTING RELIEF FROM JUDGMENT AND DIRECTING RE-ENTRY OF JUDGMENT
OTIS D. WRIGHT, II, UNITED STATES DISTRICT JUDGE.
On July 11, 2014, the Court issued an Order herein accepting the findings and recommendation of the Magistrate Judge and directing that a Judgment be entered denying the Petition and dismissing this action with prejudice. Pursuant to the Court's Order, Judgment was entered that same date.
When the Court issued its Order, it did so without consideration of the objections to the Magistrate Judge's Report and Recommendation that petitioner had submitted for filing on June 25, 2014. Those objections had been returned to petitioner unfiled for the stated reason that petitioner had not signed the document. In fact, that was a mistake because the objections did include a signed verification page. Moreover, the mistake was then compounded by the fact that no mailing address had been inputted for petitioner in the Court's automated docketing system. As a result, the discrepancy notice relating to his objections was never served on petitioner.
Petitioner now has filed a document captioned " Motion to Resubmit Objection to the Magistrate's Report and Recommendation, " which the Court construes as a motion for relief from the Judgment pursuant to Fed.R.Civ.P. 60(b)(1) and/or 60(b)(6). As so construed, petitioner's motion is granted and it is hereby ordered that the July 11, 2014 Order, along with the resulting Judgment entered herein on July 11, 2014 and the accompanying Order denying a Certificate of Appealability, are vacated.
However, having now made a de novo determination of those portions of the Report and Recommendation to which objections have been made in accordance with 28 U.S.C. § 636(b)(1)(C), the Court again accepts the findings and recommendations of the Magistrate Judge.
IT THEREFORE IS ORDERED that Judgment be re-entered denying the Petition and dismissing this action with prejudice.
JUDGMENT
Pursuant to the Order Granting Relief from Judgment and Directing Re-entry of Judgment, IT IS HEREBY ADJUDGED that the Petition is denied and this action is dismissed with prejudice.