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Raymond Christian Foss v. Mike Martel

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


September 11, 2012

RAYMOND CHRISTIAN FOSS, PETITIONER,
v.
MIKE MARTEL, WARDEN, RESPONDENT.

The opinion of the court was delivered by: John A. Mendez United States District Court Judge

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 3, 2012, the magistrate judge filed an order and findings and recommendations. Therein, the magistrate judge denied motions to expand the record, for evidentiary hearing and to defer legal argument filed by petitioner, and recommended that the petition be denied and this court decline to issue a certificate of appealability.

On May 16, 2012, petitioner filed a motion for a thirty day extension of time to file motions for reconsideration of the magistrate judge's orders. On May 17, 2012, petitioner filed a motion for this court to defer objections to the findings and recommendations pending ruling on any motions for reconsideration. On May 23, 2012, petitioner filed a motion for reconsideration of the magistrate judge's order denying his motion to defer legal argument on the substantive claims of the petition. On May 25, 2012, petitioner filed a motion for reconsideration of the magistrate judge's order denying petitioner's November 30, 2011 motion to expand the record. On May 31, 2012, respondent filed an opposition to these two motions. On June 4, 2012, petitioner filed a request to vacate the referral to the magistrate judge. On June 12, 2012, petitioner filed motions for reconsideration of the magistrate judge's order denying petitioner's motions for leave to file a supplemental motion to expand the record and a second supplemental motion to expand the record. Finally, on June 4, 2012, petitioner filed a motion for reconsideration of the magistrate judge's order denying petitioner's motion for evidentiary hearing.

After review of the record, and good cause appearing, petitioner's May 16, 2012 motion for extension of time will be granted and all of petitioner's motions for reconsideration deemed timely filed. Pursuant to E.D. Local Rule 303(f), a magistrate judge's orders shall be upheld unless "clearly erroneous or contrary to law." Upon review of the entire file, the court finds that it does not appear that any of the rulings of the magistrate judge for which petitioner seeks reconsideration were clearly erroneous or contrary to law. The rulings will therefore be affirmed.

Petitioner's motion to defer objections will be construed as a motion for extension of time to file objections and, so construed, will be granted. Petitioner will be granted twenty-one days from the date of this order in which to file and serve objections to the findings and recommendations, and respondent will be granted fourteen days in which to respond to any objections filed by petitioner.

Finally, on June 4, 2012, petitioner filed a document styled Request for Retention by District Court Judge. Therein, petitioner requests that the referral of this action to the assigned magistrate judge be vacated. That request will be denied.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's May 16, 2012 motion for extension of time (Docket No. 92) is granted;

2. Petitioner's May 23, 2012 motion for reconsideration (Docket No. 94), petitioner's May 25, 2012 motion for reconsideration (Docket No. 95), petitioner's June 12, 2012 motions for reconsideration (Docket Nos. 98 and 99), and petitioner's June 15, 2012 motion for reconsideration (Docket No. 101) are all deemed timely filed;

3. Upon reconsideration, the orders of the magistrate judge filed May 3, 2012 are affirmed;

4. Petitioner's May 17, 2012 motion to defer objections (Docket No. 93) is construed as a request for an extension of time to file objections to the May 3, 2012 findings and recommendations and, so construed, is granted;

5. Petitioner is granted thirty days from the date of this order in which to file objections to the findings and recommendations;

6. Any reply to objections shall be filed not later that fourteen days after service of objections; and

7. Petitioner's June 4, 2012 request to vacate referral of this matter to the magistrate judge (Docket No. 97) is denied.

20120911

© 1992-2012 VersusLaw Inc.



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