Montue v. Mueller

Full title: JOHN MONTUE, Petitioner, v. G.A. MUELLER, et al., Respondents

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

Date published: Aug 23, 2005

No. CIV S-98-1580 LKK JFM P (E.D. Cal. Aug. 23, 2005)

Opinion

No. CIV S-98-1580 LKK JFM P.

August 23, 2005

ORDER

LAWRENCE KARLTON, Senior District Judge

Petitioner, a state prisoner proceeding pro se, has filed a motion pursuant to Fed.R.Civ.P. 60(b) for reconsideration of the judgment entered in this action on March 16, 2001 denying on the merits his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On July 8, 2005, the magistrate judge filed amended findings and recommendations¹ herein which were served on petitioner and which contained notice to petitioner that any objections to the findings and recommendations were to be filed within twenty days. On July 20, 2005, petitioner filed objections to the findings and recommendations, and on July 22, 2005 and July 29, 2005, petitioner filed amended objections to the findings and recommendations.²

1 The amended findings and recommendations superseded findings and recommendations filed on May 10, 2005 and vacated by the magistrate judge in his July 8, 2005 findings and recommendations.

2 Petitioner has included with his objections a request for release on his own recognizance or on bail during the pendency of this action. For the reasons set forth in the magistrate judge's findings and recommendations, petitioner's habeas corpus application must be dismissed without prejudice. A fortiori, his request for release on bail will be denied.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed July 8, 2005, are adopted in full;

2. Petitioner's request for release on his own recognizance or reasonable bail is denied; and

3. Petitioner' February 1, 2005 Rule 60(b) motion for reconsideration is construed as a second or successive habeas corpus application and, so construed, dismissed because the United States Court of Appeals for the Ninth Circuit has denied petitioner authorization to proceed with such second or successive petition application.