United States District Court, S.D. California
December 12, 2005.
ANTHONY GONSALVES, Petitioner,
JOE McGRATH, Warden, Respondent.
The opinion of the court was delivered by: WILLIAM HAYES, District Judge
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. § 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
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
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