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Ferrill v. Malfi

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 10, 2010

JASON L. FERRILL, PETITIONER,
v.
A. MALFI, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Cormac J. Carney United States District Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636, the Court has reviewed the entire file de novo, including the Petition, the Magistrate Judge's Report and Recommendation ("R&R"), the Objections to the R&R filed on September 7, 2010, and the records and files. Based upon the Court's de novo review, the Court agrees with the recommendation of the Magistrate Judge.

On March 31, 2010, the Magistrate Judge issued a Notice of Filing Report and Recommendation ("Notice"). (Dkt. No. 31.) The Notice stated that an R&R had been filed on March 31, 2010, and that objections and a request for a certificate of appealability must be filed no later than April 23, 2010. (Id.) On April 21, 2010, Petitioner filed a request for an extension of time to file objections and a request for a certificate of appealability. On April 26, 2010, the Magistrate Judge granted Petitioner's requests, giving him until June 23, 2010. (Dkt. No. 34.)

Having received no objections or a request for a certificate of appealability from Petitioner, on July 13, 2010, the Court entered an Order Adopting Magistrate Judge's Report and Recommendation, a Judgment denying the Petition and dismissing the action with prejudice, and an order denying Petitioner a certificate of appealability. (Dkt. Nos. 35-37.)

On August 4, 2010, the Court received from Petitioner a request for an additional 45 days to file objections and a request for a certificate of appealability. Petitioner stated he had been unable to access the prison law library because of a lockdown. However, Petitioner had signed the Request on June 11, 2010. According to the back of the envelope, Petitioner had delivered the request to prison authorities on June 13, 2010, and the front of the envelope had metered postage dated June 14, 2010. The Court construed Petitioner's request as a motion under Fed. R. Civ. P. 60(b)(6) to be relieved from the judgment for "any other reason that justifies relief." Under the prison mailbox rule, Petitioner's request for an additional extension of time was timely. Because of the unexplained delay of over one month in the delivery of the mail, on August 13, 2010, the Court granted Petitioner's motion in part and vacated the Order Adopting (Dkt. No. 35), the denial of the certificate of appealability (Dkt. No. 37), and the Judgment (Dkt. No. 36). (Dkt. No. 42.)

The Court gave Petitioner 20 days from the date of its order to file objections to the R&R and to request a certificate of appealability. The Court advised Petitioner that any further request for extension of time should be directed to the Magistrate Judge.

On September 7, 2010, Petitioner filed objections to the R&R but, at the same time, stated that he had not had enough time to prepare the objections. (Dkt. No. 43.) Accordingly, on September 13, 2010, the Magistrate Judge extended the time for Petitioner to file additional objections to October 12, 2010. (Dkt. No. 46.) Petitioner did not file any additional objections.

Petitioner's objections filed on September 7, 2010, are without merit.

IT IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.

20101110

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