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Paul Lewis v. Matthew Cate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 31, 2010

PAUL LEWIS, PETITIONER,
v.
MATTHEW CATE, RESPONDENT.

ORDER

Petitioner, Paul Lewis, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a determinate sentence of sixteen years following his plea of nolo contendere in Sacramento County Superior Court to three counts of sexual penetration by force, two counts of oral copulation by force, six counts of rape by force, and six counts of sodomy by force. With his petition, Petitioner presents various claims challenging the constitutionality of his conviction.

The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On January 11, 2011, the magistrate judge filed findings and recommendations herein which recommended that the petition be denied. On January 27, 2011, Petitioner filed a notice of appeal to the magistrate judge's findings and recommendations. However, the findings and recommendations have not been adopted by the assigned United States District Court Judge and, therefore, judgment has not yet become final in this case. See 28 U.S.C. § 636(b)(1)(C). The district court judge, after conducting ade novo review of the case, "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." Id. Thus, Petitioner is advised that the appropriate time in which to file a notice of appeal is within thirty days of an order issued by the district court judge finalizing the magistrate judge's findings and recommendations. FED. R. APP. P. 4(a)(1)(A).

Accordingly, IT IS HEREBY ORDERED that Petitioner's notice of appeal is stricken from the record as untimely, with leave to re-file within the statutorily designated time frame described above.

20100131

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