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Richard Charles Buchanan v. Matthew Cate

July 20, 2011

RICHARD CHARLES BUCHANAN,
PETITIONER,
v.
MATTHEW CATE, SECRETARY; AND EDMUND G. BROWN, JR., THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA,
RESPONDENTS.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge United States District Court

ORDER DENYING MOTION TO AMEND

FINDINGS [Docket No. 79]; GRANTING LEAVE TO FILE ADDENDUM TO FIRST AMENDED PETITION [Docket No. 80]; GRANTING MOTION FOR LEAVE TO CORRECT TYPOGRAPHICAL ERRORS [Docket No. 81]; and GRANTING REQUEST FOR SERVICE OF MARDSEN HEARING TRANSCRIPTS. [Docket No. ) 83.] INTRODUCTION

On February 22, 2010, Petitioner Richard Charles Buchanan ("Petitioner"), a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. [Docket No. 1.] Petitioner is a California prisoner serving a term of forty-five years to life plus ten years who is challenging his convictions for kidnapping for extortion, assault with a semi-automatic firearm, making a criminal threat, being a felon in possession of a firearm, transportation of a controlled substance, possession of a controlled substance for sale, and possession of a controlled substance. (Lodgment 7 at

On December 9, 2010, Petitioner filed the First Amended Petition ("FAP"), the active pleading in this case. [Docket No. 40.] On the same day, Petitioner moved to have exhibits from his original Petition attached to the FAP and that motion was granted on December 14, 2010. [Docket No. 43.] On March 9, 2011, Respondent filed an Answer to the FAP. [Docket No. 51.]

On March 24, 2011, Petitioner filed a Motion for Discovery [Docket No. 53.] On or about April 28, 2011, Petitioner filed a motion for Judicial Notice [Docket No. 60], a Motion for Sanctions [Docket No. 61], and a Motion to Compel Respondent to Comply with Order [Docket No. 63 hereinafter "Motion to Compel".] On May 9, 2011, Petitioner filed a Second Motion for Judicial Notice. [Docket No. 64.] On May 25, 2011, the Court issued an Order Denying the Motion for Discovery; Granting in Part and Denying in Part Motion for Judicial Notice; Denying Motion for Sanctions; Denying Motion to Compel Respondent to Comply with Order; and Granting Motion for Judicial Notice; and Requiring Supplemental Lodgments. [Docket No. 68, hereinafter "The Order."]

On June 17, 2011, Petitioner filed a Motion to Amend Findings. [Docket No. 79.] On June 24, Petitioner filed: 1) a Motion for Advance Leave to File Second Amended Petition [Docket No. 80]; 2) a Motion to Correct Two Typos/Errors [Docket No. 81]; and 3) an Ex Parte Motion re: 6/8/11 Order Requiring Clerk's Office to Serve Petitioner Copy of Marsden Transcripts Be Completed and Missing Pages Provided [Docket No. 83.] The Court will address each motion in turn.

MOTION TO AMEND FINDINGS

A. Appropriate Rules Governing Request

Petitioner filed a "Motion to Amend Findings Pursuant to Fed. R. Civ.P. 52(b), 60(a)(b)(6) in 28 U.S.C. § 2253 Habeas Corpus Case." Although not entirely clear, Petitioner appears to ask the court to reconsider the parts of the Order denying the request for an order requiring a supplemental answer and denying request for discovery. Rule 52(b) states: "On a party's motion filed no later than 28 days after the entry of judgment, the court may amend its findings--or make additional findings--and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59." Fed. R. Civ. P. 52(b). Rule 52 is applicable only after judgment has been entered. Hensley v. U.S. Dist. Court Eastern Dist. of Ca., 2008 WL 686816 (E. D. Cal. March 10, 2008); McNeil v. U.S. 2006 WL 581081 (W.D. Wash. March 08, 2006). As no judgment has been entered in this case, Rule 52 does not apply.

Rule 60(a) provides:

The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.

Fed. R. Civ. P. 60(a). Because Petitioner is not seeking to correct a clerical mistake by the court, Rule 60(a) does not apply. Rule 60(b) provides;

On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or ...


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