Opinion
1:20-cv-01092-DAD-SAB (HC)
06-23-2021
DANIEL FRAZER, Petitioner, v. NEIL MCDOWELL, Respondent.
ORDER REFFERING MATTER BACK TO
THE MAGISTRATE JUDGE FOR AMENDED FINDINGS AND RECOMMENDATIONS
(DOC. NO. 17)
Petitioner Daniel Frazer is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302.
On April 21, 2021, the assigned magistrate issued findings and recommendations recommending that the petition for federal habeas relief be denied. (Doc. No. 17.) The pending findings and recommendations were served on petitioner with notice that any objections thereto were to be filed within thirty (30) days of service. (Id.) On May 12, 2021, petitioner filed objections. (Doc. No. 18.)
In reviewing those objections, the undersigned has concluded that the pending findings and recommendations did not address certain arguments raised by petitioner in his petition and reiterated in his traverse and objections to the pending findings and recommendations.
Specifically, petitioner asserts that a search warrant was required for his cell site phone records which placed him near the scene of the robbery and that the government failed to establish that such a warrant was obtained. (Doc. Nos. 1 at 11, 16 at 10, 18 at 4-5) (citing Carpenter v. United States, ____U.S____, 138 S.Ct. 2206 (2018)). Petitioner argues that although Carpenter was decided after the jury returned their guilty verdict in his case, the decision pre-dated his conviction becoming final and that it therefore applies to his case. (Doc. No. 18 at 4.) While a 2010 federal search warrant is briefly referred to in the findings and recommendations without further explanation (see Doc. No. 17 at 18 n.12), the pending findings and recommendations do not address petitioner's apparent claim that under Carpenter a warrant was required to obtain his historical cell site records and that it was not established that such a warrant was obtained.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court refers the matter back to the assigned magistrate judge for amended findings and recommendations addressing petitioner's arguments with respect to Carpenter.
IT IS SO ORDERED.