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Nasirichampang v. Almager

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 15, 2008

SOMCHIT JOY NASIRICHAMPANG, PETITIONER,
v.
VICTOR M. ALMAGER, WARDEN, RESPONDENT.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT

Petitioner Somchit Joy Nasirichampang, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. The case was referred to United States Magistrate Judge Anthony J. Battaglia for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). On January 25, 2008, the Magistrate Judge issued a Report and Recommendation, recommending to grant Respondent's motion to dismiss the petition as untimely. Any objections to the Report and Recommendation were due to be filed no later than February 15, 2008. Upon review of the Report and Recommendation and having received no objections, the court adopted the Report and Recommendation on March 3, 2008. A judgment was entered on the same date. On April 4, 2008, the court received a Motion for Relief from Judgment from Petitioner. For the reasons which follow, the motion is DENIED.

In a supporting declaration, Petitioner asserts he did not file objections because he did not receive a copy of the Report and Recommendation and requests the court to rescind the judgment to allow him to file objections. Petitioner maintains that "[b]ased on current prison policy and procedure, a prisoner's signature is required prior to receiving all confidential or legal mail." (Decl. at 3.) Petitioner claims that this would allow the court to verify his claim. (Id.) However, no log is attached to the declaration. Furthermore, any such log would show that Petitioner has not signed for receipt of legal mail on a certain date. The log would not show, for example, if Petitioner declined to accept legal mail. Petitioner's declaration does not preclude this possibility.

The court's docket shows that except for the Report and Recommendation, Petitioner has timely received all orders of the court, including the March 3 order adopting the Report and Recommendation and related Judgment. All orders of the court, including the Report and Recommendation, the order adopting it and the Judgment have been sent to the same address. The mailing address and the fact of mailing in each instance are documented in the court's docket. In cases of failed delivery, the court customarily receives and dockets a notice of non-delivery. No such notices have been received in this case. If Petitioner had any questions about the status of the case, he could obtain the information by calling the office of the Clerk of Court, the chambers if the Magistrate Judge assigned to this case, or accessing the court's docket electronically, either personally or with the assistance of the prison litigation coordinator.

Based on the foregoing, the court does not find Petitioner's declaration sufficient to rebut the presumption of mailing. See Singh v. Gonzales, 494 F.3d 1170 (9th Cir. 2007). Petitioner's motion for relief from judgment is DENIED.

IT IS SO ORDERED.

20080415

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