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Edward Lee Bowman v. G. Swarthout

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


November 19, 2012

EDWARD LEE BOWMAN, PETITIONER,
v.
G. SWARTHOUT, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On May 11, 2012, the magistrate judge filed findings and recommendations recommending that respondent's motion to dismiss be granted and that his action be dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases. No objections were filed although petitioner was granted an extension of time on June 11, 2012. Subsequently, the magistrate judge's findings and recommendations were adopted, judgment was entered on September 6, 2012, and this action was closed. Before the court are petitioner's motion for reconsideration, objections to the magistrate judge's findings and recommendations, and request for a certificate of appealability.

Petitioner contends that on June 13, 2012, he mailed a "Motion in Objections to Magistrate Judges [sic] findings [sic] and Recommendations and Request for Issuance of a Certificate of Appealability" which petitioner again submits with this motion for reconsideration. There is no record that petitioner's objections and request for a certificate of appealability were received by the court. Nevertheless, the court will vacate the judgment and consider petitioner's objections to the findings and recommendations and request for a certificate of appealability.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.

As for petitioner's request for a certificate of appealability, petitioner has failed to make a substantial showing that his claims amounted to a denial of his constitutional rights or demonstrate that a reasonable jurist would find the dismissal of his petition debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of appealability is warranted in this case.

Accordingly, IT IS HEREBY ORDERED that:

1. The court's order (Doc. No. 19) and judgment entered on September 6, 2012, are vacated;

2. Petitioner's September 25, 2012 motion for reconsideration (Doc. No. 21) is granted;

3. After reconsideration, the findings and recommendations filed May 11, 2012, are adopted in full;

4. Respondent's December 14, 2011 motion to dismiss (Doc. No. 14) is granted;

5. This action is dismissed under Rule 4 of the Rules Governing Section 2254 Cases; and

6. Petitioner's September 25, 2012 motion for a certificate of appealability (Doc. No. 22) is denied.

20121119

© 1992-2012 VersusLaw Inc.



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