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Wallace v. Small

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 14, 2009

N. WALLACE, PETITIONER,
v.
LARRY SMALL, WARDEN, RESPONDENT.

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

ORDER OVERRULING OBJECTIONS TO REPORT AND RECOMMENDATION; AND ORDER DENYING MOTION TO DISMISS PETITION

[Docket no. 29.]

On February 9, 2009, Warden Larry Small (the "Respondent") moved to dismiss the amended petition filed by Nathaniel Wallace (the "Petitioner"). The motion was referred to Magistrate Judge Louisa Porter for report and recommendation pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(d). On August 20, 2009, Judge Porter issued her report and recommendation (the "R&R"). Although the R&R recommended denying Respondent's motion to dismiss, it was Petitioner who filed objections to the R&R. Respondent filed no objections of his own, and did not reply to Petitioner's objections.

Petitioner argues he has been in custody longer than he should have been. His argument is that he has served his sentence on all counts of which he was convicted except (arguably) count 4. He contends the trial court never included this count in its pronouncement of judgment or sentenced him for this count, and he was improperly "sentenced" on this count by the California Department of Corrections and Rehabilitation, by simply writing in a sentence on the abstract of judgment.

The R&R notes that the documentary record is incomplete, and based on the record before the Court, the motion to dismiss must therefore be denied without prejudice. In the event Respondent again moves to dismiss, the R&R requires him both to file a complete record, and also to brief the legal significance of the abstract of judgment as it pertains to the jury's verdict and the sentence imposed at the sentencing hearing.

Petitioner's objections consist of, essentially, a summary of the claims he raises in his amended petition. It is unclear what exactly he is objecting to, since the ruling is favorable to him. It may be that he believes the motion should be denied with prejudice rather than without, but he does not say so. In any event, the Court finds denial without prejudice is appropriate given the incompleteness of the record. Petitioner's objections are therefore OVERRULED AS MOOT. The Court ADOPTS the R&R and DENIES the motion to dismiss.

Because it is apparent the complete record will be needed, Respondent is directed to obtain it promptly so as to be able to file it without undue delay when required.

IT IS SO ORDERED.

20090914

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