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GONSALVES v. McGRATH

United States District Court, S.D. California


December 12, 2005.

ANTHONY GONSALVES, Petitioner,
v.
JOE McGRATH, Warden, Respondent.

The opinion of the court was delivered by: WILLIAM HAYES, District Judge

ORDER

On January 28, 2002, Petitioner Anthony Gonsalves, a state prisoner proceeding pro se, filed the instant petition for writ of habeas corpus under 28 U.S.C. ยง 2254. Petitioner alleged the following grounds for relief: (1) his conviction for possession of a firearm must be dismissed due to the trial court's failure to instruct the jury on involuntary intoxication, and (2) his sentence of thirty-two years to life violates the Eighth Amendment prohibition of cruel and unusual punishment. On January 16, 2004 the Honorable Ruben B. Brooks, United States Magistrate Judge, issued a Report and Recommendation ("R&R") detailing the reasons why the petition should be denied. The parties were permitted to file objections to the R&R no later than February 16, 2004. Neither party filed objections nor requested additional time in which to do so. By order dated March 9, 2004 the Court adopted the R&R and denied the petition. On March 21, 2004, Petitioner filed a Motion to reopen his case which the Court construed as Motion for Reconsideration. On September 15, 2004, the Court ordered the case reopened for the limited purpose of allowing Petitioner to submit objections to the R&R. On October 22, 2004, the Court granted Petitioner an extension of time in which to file his objections.

On October 21, 2004, Magistrate Judge Brooks denied a Motion for Appointment for Counsel filed by Petitioner. On December 9, 2004, Petitioner filed a document titled "Objection to Magistrate Judge's Report and Recommendations (1) to deny appointment of counsel (2) the Magistrate Judges's Recommendation to Dismiss Petition." However, while the objection addressed Petitioner's request for appointment of counsel, it did not set forth any arguments with respect to the Report and Recommendation in regards to the dismissal of Petitioner's Petition for Writ of Habeas Corpus. Therefore, the Court construed the "objections" as a Motion for Appointment of Counsel, and referred the matter to Magistrate Judge Brooks for consideration.

  On April 28, 2005, Judge Brooks denied Petitioner's fifth and sixth request for appointment of counsel. On May 31, 2005, Judge Brooks denied a Motion for Reconsideration of that Order. On June 3, 2005, the Court granted Petitioner an additional 75-day extension of time in which to file objections to the Report and Recommendation. On August 4, 2005, the Court granted an additional 45-day extension of time in which to file objections. On October 21, 2005, Petitioner was granted a final extension of time in which to file objections. In that Order, Petitioner was warned that objections must be filed on or before December 2, 2005, and that the Court would not grant any additional extensions of time in which to file objections.

  This file was reopened for the limited purpose of allowing Petitioner to file objections. The Order granting Petitioner's Motion to Reopen these proceedings, so that Petitioner could file objections to the Magistrate Judge's Report and Recommendation, was dated September 14, 2004. At that time, Petitioner was ordered to file his objections no later than October 15, 2004. Despite more than a years worth of extensions, Petitioner has failed to file any objections with the Court. Petitioner was expressly warned that he must file objections on or before December 2, 2005, and that the Court would not allow any additional extensions of time. To date, Petitioner has not filed any objections with the Court. Accordingly, the Court adopts the Report and Recommendation consistent with the Court's March 9, 2004 Order, dismisses the Petition for Writ of Habeas Corpus, and directs the Clerk of Court reinstate judgment and terminate this matter in its entirety.

  For the foregoing reasons,

  IT IS ORDERED the Court ADOPTS the Report and Recommendation in its entirety and DENIES Petitioner's habeas corpus petition. The petition is hereby dismissed with prejudice. The Clerk of the Court shall enter judgment in accordance with this order.

20051212

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