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Gregory W. Stewart v. Derral G. Adams

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 27, 2012

GREGORY W. STEWART,
PETITIONER,
v.
DERRAL G. ADAMS, WARDEN RESPONDENT.

ORDER REGARDING PETITIONER'S DELAYED OBJECTIONS TO THE FINDINGS AND RECOMMENDATION ISSUED JUNE 15, 2010 ORDER DENYING OBJECTIONS [Docs. 11 & 12]

On May 27, 2010, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court.

On June 15, 2010, Magistrate Judge Beck issued Findings and Recommendation to dismiss the action as successive pursuant to 28 U.S.C. § 2244(b)(1).

The Court did not receive any objections from Petitioner, and on September 7, 2010, the undersigned adopted the Findings and Recommendation in full and the action was dismissed.

On April 17, 2012, the Court received objections from Petitioner to the Findings and Recommendation, which were dated in June of 2010. Along with the objections was a letter from Tim V. Virga, Warden of the California State Prison Sacramento, explaining that the document "objections" had not been delivered to this Court.

The Court has carefully reviewed the entire file, including Petitioner's objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis. Petitioner's objections present no grounds for questioning the court's prior finding. As previously found, the petition in this action is a successive petition under 28 U.S.C. § 2244(b), and Petitioner has not obtained leave from the Ninth Circuit to file a second or successive petition. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir.2009) (holding "that the dismissal of a habeas petition as untimely constitutes a disposition on the merits and that a further petition challenging the same conviction would be 'second or successive' for purposes of 28 U.S.C. § 2244(b)"). Thus, the court cannot consider the petition filed in this action. Accordingly, there is no basis to alter the Court's September 7, 2010, dismissal order, and

Petitioner's objections are DENIED.

IT IS SO ORDERED.

CHIEF UNITED STATES DISTRICT JUDGE

20120427

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