Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Calhoun v. Castro

April 22, 2009

CHARLES E. CALHOUN,*FN1 PETITIONER,
v.
ROY A. CASTRO, RESPONDENT.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER ACCEPTING OBJECTIONS TO REPORT AND RECOMMENDATION AND SUPPLEMENTAL OBJECTIONS AS FILED AND DENYING AS MOOT REQUEST FOR LEAVE TO SUPPLEMENT OBJECTIONS; AND ORDER ADOPTING REPORT AND RECOMMENDATION

On March 2, 2007, Petitioner, a prisoner in custody pursuant to a state court judgment, filed his petition for writ of habeas corpus (the "Petition") under 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1, the Petition was referred to Magistrate Judge Nita Stormes for report and recommendation. On March 6, 2007, Judge Stormes issued a scheduling order requiring briefing from both Petitioner and Respondent. On May 4, 2007, Judge stormes granted Respondent's application for enlargement of time, extending all briefing dates. Respondent then filed an answer on June 4, 2007, but Petitioner never filed a traverse or any other briefing.

I. Objections and Supplemental Objections

On December 7, 2007, Judge Stormes issued her report and recommendation (the "R&R") in this case, ordering Petitioner to file his objections to the R&R no later than January 2, 2008. Petitioner then filed a pleading styled "Notices of Objection to all 'Report and Recommendation'" ("First Objections"), accepted by discrepancy order on January 3, 2008 and filed nunc pro tunc to December 26, 2007.

In the First Objections, Petitioner initially stated he had not been able to prepare objections to the R&R due to being held in administrative segregation without access to the prison library, as well as to confiscation of his legal forms and his traverse motions He also says he was still suffering from injuries. Petitioner also says he needed a court order with deadlines to have priority to use the prison law library.

In support of his contentions regarding administrative segregation and library use, Petitioner attached several administrative documents. These documents, however, are dated no later than November 28, 2007 and show Petitioner was involved in administrative proceedings expected to be completed by December 4, 2007. Among these documents is also a memorandum from the prison's library officer alerting Petitioner that the library may take up to 7 days to respond to requests, and informing Petitioner of the library's policy of giving priority to prisoners with upcoming litigation deadlines.

According to the documents Petitioner submitted, the incident in which Petitioner was injured occurred in July, 2007, but as of November 16, 2007, Petitioner stated he was in good health. Furthermore, because the R&R itself gave Petitioner a deadline by which to object to the R&R, Petitioner was eligible for law library priority based on that deadline. The First Objection was signed December 18, 2007, approximately two weeks before Petitioner was required to file his objections to the R&R.

In spite of Petitioner's statement that he could not file objections to the R&R, Petitioner included several pages of objections in his First Objections. He supplemented these with exhibits, which were accepted for filing on January 17, 2008 and filed nunc pro tunc to January 14, 2008. The Court therefore construes these as incomplete preliminary objections accompanied by a request for leave to supplement them, which the Court GRANTS.

On January 11, 2008, the Court accepted by discrepancy order an uncaptioned request (the "Application for Extension") directed to the Clerk explaining Petitioner's situation and apparently seeking additional time to file objections. This was filed nunc pro tunc to January 2, 2008. The Application for Extension focused on the administrative investigation of alleged misbehavior by prison officers against Petitioner, and included a number of documents dated July 30, 2007 relating to the administrative investigation. While this incident, if it occurred as alleged, is a serious matter, it did not appear to affect Petitioner's ability to object to the R&R. Petitioner raised only general claims regarding access to the prison law library, stating it was difficult for him to get permission to use it and that he had not yet been able to get access. He also said his legal papers had not been given to him, apparently referring to records of the administrative proceedings. The matters raised in this pleading present no cognizable objection to the R&R nor any claim that can be litigated in these habeas proceedings.

Petitioner then submitted a document styled as Petitioner's traverse (the "Supplemental Objections"), which the Court accepted by discrepancy order on January 22, 2008, directing that it be filed nunc pro tunc to January 14, 2008. In the Supplemental Objections, Petitioner addressed the merits of the R&R. The Supplemental Objections cite criminal proceedings by case number and refer to specifics of the trial, indicating Petitioner had the legal records he needed to refer to. He did not seek leave to supplement his objections further, nor did he seek any further extensions of time.

Except for a notice of change of address, Petitioner filed no further pleadings. Because the were filed after the R&R was issued, the Court construes the First and Supplemental Objections together as Petitioner's objections to the R&R (collectively, "Objections"). The First Objections and Application for Extension refer to incidents in prison which may have prevented Petitioner from filing a traverse but did not prevent Petitioner from objecting to the R&R. Petitioner's requests concerning the investigation of alleged prison staff misconduct are deemed abandoned in his Supplemental Objections, but to the extent he did not abandon them they would be denied as moot. The Objections are therefore ACCEPTED AS FILED.

II. Legal Standards

A district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1). An objecting party may "serve and file specific written objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Rule 72(b).

In reviewing an R&R, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The court reviews de novo the magistrate judge's conclusions of law. Robbins v. Carey, 481 F.3d 1143, 1146--47 (9th Cir. 2007).

The Court "entertain[s] an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. ยง 2254(a). Section 2254 habeas proceedings thus measure state convictions against federal constitutional requirements applicable to the states. Only errors of federal constitutional magnitude will support federal intervention in state judicial proceedings, and only to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.