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Allen v. Calderon

January 26, 2009

ERNEST LEE ALLEN, PETITIONER,
v.
ART CALDERON, RESPONDENT.



The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION AND GRANTING PETITIONER THIRTY DAYS TO FILE OBJECTIONS TO THE FINDINGS AND RECOMMENDATION

[Docs. 75, 77, 78]

Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is represented by Carolyn D. Phillips, Esq.

Now pending before the Court is Petitioner's motion for reconsideration pursuant to Rule 72(a) of the Federal Rules of Civil Procedure and Local Rule 72-303(f), filed November 13, 2008. (Court Doc. 75.) Petitioner seeks reconsideration of the Magistrate Judge's order denying his motion to amend. (Court Doc. 70.)

RELEVANT BACKGROUND

Petitioner filed the instant petition for writ of habeas corpus on August 2, 2001. (Court Doc. 1.) On April 2, 2002, the Court issued an order to show cause why the petition should not be dismissed for failure to exhaust the state court remedies and failure to sign the petition under penalty of perjury. (Court Doc. 9.) Because Petitioner failed to comply with the Court's order, the Magistrate Judge issued a Report and Recommendation to dismiss the action for failure to prosecute. (Court Doc. 12.) On July 16, 2002, Petitioner filed a motion for appointment of counsel, and on July 25, 2002, he filed objections.

On July 30, 2002, the motion for counsel was denied, and on August 22, 2002, the Court adopted the Report and Recommendation and action was dismissed. (Court Docs. 16, 17.)

Petitioner filed a timely notice of appeal. On May 25, 2005, the action was reversed and remanded for further factual development regarding Petitioner's competency and the necessity of a guardian ad litem.

On June 15, 2005, the Court appointed the Office of the Federal Defender to represent Petitioner and ordered briefing pursuant to the Ninth Circuit's remand. (Court Doc. 29.)

On September 16, 2005, Petitioner's counsel filed a brief regarding Petitioner's competency. On January 30, 2006, the Court ordered further briefing. (Court Doc. 38.) Petitioner filed the second brief on February 16, 2006. (Court Doc. 39.)

Based on counsel's response, the Court directed that appointment of a guardian ad litem was unnecessary because Petitioner's interests were adequately protected by represented counsel. (Court Doc. 40.) Respondent was ordered to file a response to the petition. (Id.)

On May 30, 2006, Respondent filed an answer to the petition arguing the petition was untimely under 28 U.S.C. § 2244(d) and, in the alternative, without merit. Petitioner filed a traverse on August 25, 2006. (Court Docs. 41, 49.)

On December 4, 2007, the Court directed Petitioner to submit any and all documentation in support of his request to expand the record. (Court Doc. 55.)

After receiving three extensions of time, Petitioner filed a supplemental brief and a motion to conduct discovery relating to his ability to file the federal petition within ...


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