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David Michael Fuschak v. Kathleen Dickinson

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


February 7, 2012

DAVID MICHAEL FUSCHAK,
PETITIONER,
v.
KATHLEEN DICKINSON, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Susan Illston United States District Judge

ORDER

Petitioner's motion for reconsideration of the order of dismissal is DENIED. (Docket # 15 22.) Petitioner's suggestion that the court did not read the addendum to his opposition is not well 16 taken. The court cited petitioner's addendum (Docket # 18) at pages 5 and 8 of the order of 17 dismissal, and cited the "motion in opposition" (Docket # 17) at page 9 -- good indicators that 18 the court read the documents in question. Petitioner urges that the handbook he received was 19 essentially an instruction from the State. The evidence (as opposed to argument) does not 20 demonstrate that a state official instructed him to comply with the handbook, rather than simply 21 provided a handbook in response to a library request. However, even if the State had instructed 22 him to comply with the handbook, it would not help his cause because (1) the State did not 23 impede his ability to file a federal petition on time, as the handbook's mistake about the deadline 24 did not instruct him that he was not allowed to file a petition until a particular date, and (2) the 25 federal petition would still be untimely for the reasons stated at pages 6-7 and footnote 3 in the 26 order of dismissal. Petitioner's other arguments are rejected. The court has neither the 27 obligation nor the resources to discuss every authority litigants cite in their briefs. The salient 28 arguments were considered and discussed in the order of dismissal. Anything not discussed was implicitly rejected. 2 Petitioner's "motion requesting district court to apply 'prison mailbox rule' in calculating 3 the timeliness of the filing of the motion for reconsideration of order of dismissal" is 4 GRANTED. (Docket # 23.) The motion for reconsideration is deemed to have been filed on 5 January 26, 2012. 6 Petitioner's motion for a certificate of appealability is DENIED. (Docket # 24.) This is 7 not a case in which "jurists of reason would find it debatable whether the petition states a valid 8 claim of the denial of a constitutional right and that jurists of reason would find it debatable 9 whether the district court was correct in its procedural [rulings]" in the order of dismissal or in 10 this order. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see 28 U.S.C. § 2253(c). The denial of the certificate of appealability is without prejudice to petitioner seeking a certificate from the United States Court of Appeals for the Ninth Circuit. 13 Petitioner's motion for appointment of counsel is DENIED. (Docket # 27.) In light of the 14 dismissal of the petition as untimely, the interests of justice do not require the appointment of 15 counsel because there is no likelihood of success on the merits in this action. See 18 U.S.C. § 16 3006A(a)(2)(B); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). 17 Petitioner's request to proceed in forma pauperis on appeal is GRANTED. (Docket # 26.) 18 IT IS SO ORDERED.

20120207

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