Moore v. Campbell

Full title: DWAIN D. MOORE, Petitioner, v. WARDEN CAMPBELL, et al., Respondents

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

Date published: Nov 29, 2007

2:06-cv-0119-GEB-GGH-P (E.D. Cal. Nov. 29, 2007)

Opinion

2:06-cv-0119-GEB-GGH-P.

November 29, 2007

ORDER

GARLAND BURRELL JR., District Judge

Petitioner, a state prisoner proceeding pro se, has filed this 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 August 1, 2007, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Neither party filed objections to the findings and recommendations. On October 25, 2007, this court adopted the findings and recommendations.

On November 5, 2007, petitioner filed a motion to amend the judgment, which the court construes as having been made pursuant to Fed.R.Civ.P. 60. Petitioner states that he did serve the court with objections to the findings and recommendations. Attached to petitioner's motion is a copy of the prison mail log showing that he sent this court mail on August 10, 2007. On November 7, 2007, respondent filed a response to petitioner's motion. Respondent states that the California Attorney General's Office received petitioner's objections on August 14, 2007.

It appears that petitioner made a good faith effort to serve his objections on the court. Why they were not received is unknown. Good cause appearing, petitioner's motion to amend the judgment is granted. The October 25, 2007, judgment is vacated and the court will consider petitioner's objections which are attached to his November 5, 2007, motion.

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, including petitioner's objections, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's November 5, 2007, motion to amend the judgment is granted;

2. The October 25, 2007, judgment is vacated;

3. The findings and recommendations filed August 1, 2007, are adopted in full; and

4. Petitioner's jury instruction error claim is denied and judgment is entered in favor of respondents.