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Gehrke v. Sullivan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 13, 2008

JESSE LYLE GEHRKE PETITIONER,
v.
R. SULLIVAN, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

ORDER (1) VACATING THIS COURT'S PREVIOUS ORDER OF FEBRUARY 1, 2008; (2) PERMITTING PETITIONER TO FILE OBJECTIONS TO REPORT AND RECOMMENDATIONS

It has recently come to the Court's attention that on December 27, 2007, the Court received from Petitioner a "Petition for Issuance of Certificate of Probable Cause" and a "Notice of Appeal." In these documents, Petitioner incorrectly characterizes Magistrate Judge Leo Papas's November 20, 2007 Report and Recommendation ("the R&R") as a "final judgment" and seeks permission to present an appeal to the Ninth Circuit.*fn1

Because no final order had issued in the matter at the time, Petitioner's Petition for Issuance of a Certificate of Probable Cause and Notice of Appeal were premature. As a result, though incorrectly, the documents were not docketed at the time of their receipt but instead were held until such time as this Court issued its order, dated February 1, 2008, adopting the Report & Recommendations and denying the Petition for Writ of Habeas Corpus. Had the documents been docketed upon receipt, as they should have been, thus making the Court aware of Petitioner's ineffectual attempt at challenging the Magistrate Judge's Report and Recommendations, the Court would have alerted Petitioner to his error and instructed him once again to file written objections with the Court.

IT IS ORDERED:

Now cognizant that Petitioner attempted to respond in some manner to the Report and Recommendations, the Court VACATES its February 1, 2008 Order and Judgment pursuant to Fed. Rule of Civil Procedure 60(a) which authorizes a court to grant relief from a judgment arising from a mistake or omission.

No later than Monday, March 10, 2008, Petitioner may file written objections to the Magistrate Judge's November 20, 2007 Report and Recommendations and serve a copy on Respondent. The document should be captioned "Objections to Report and Recommendation." These objections are distinct from a request for permission to appeal and should contain reasons why this Court should not adopt the Magistrate Judge's factual or legal conclusions.

Any reply to the objections by Respondent shall be filed with the Court and served on Petitioner no later than Monday, March 24, 2007.

Petitioner is advised that failure to file objections with the specified time may waive the right to raise those objections on appeal.

IT IS SO ORDERED.


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