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Donald Roots v. Cate/Valenzuela

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


April 9, 2013

DONALD ROOTS, PETITIONER,
v.
CATE/VALENZUELA, ET AL., RESPONDENTS.

ORDER

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

1. Pending Findings and Recommendations

On January 24, 2013, the magistrate judge filed findings and recommendations herein which were served on petitioner and which contained notice to petitioner that any objections to the findings and recommendations were to be filed within fourteen days. Petitioner filed objections to the findings and recommendations.

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 entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

2. Second Motion for Injunctive Relief

On February 19, 2013, petitioner filed a second motion for temporary restraining order and for preliminary injunction. Petitioner again asks the court to expunge allegedly false records from court records, and "all illegal enhancements." (Dkt. No. 18.) In his supporting declaration, petitioner confirms that he seeks release from prison. (Dkt. No. 19 at 1.) Because petitioner may only challenge the fact or duration of his prison sentence through a petition for writ of habeas corpus, petitioner's second motion is denied. See also January 24, 2013 Findings and Recommendations at 2-3. (Dkt. No. 16 at 2-3.)

Petitioner is cautioned that he is subject to certain time deadlines in challenging his underlying conviction. Petitioner filed an appeal of his conviction in the California Court of Appeals, Third Appellate District, on March 9, 2010, and the judgment was affirmed on August 1, 2011. People v. Roots, 2011 WL 3273882 (Cal. App. 3 Dist. Aug. 1, 2011). Review of the Court of Appeals docket reflects that petitioner was convicted on January 29, 2010, in the Sacramento County Superior Court. People v. Roots, Case No. 08F04879. The habeas corpus statute imposes a one year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will start to run on the date on which the state court judgment became final by the conclusion of direct review or the expiration of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d).

In an abundance of caution, petitioner is granted an additional thirty days in which to file a petition for writ of habeas corpus. Petitioner is advised that failure to timely file a petition for writ of habeas corpus will result in the dismissal of this action.

Therefore, plaintiff's motion to recuse is denied.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed January 24, 2013, are adopted in full;

2. Petitioner's January 18, 2013 motion for temporary restraining order and preliminary and permanent injunction (dkt. no. 13) is denied;

3. Petitioner's January 14, 2013 motion for bail (dkt. no. 11) is denied; 4. Petitioner's January 18, 2013 motion for default judgment (dkt. no. 14) is denied;

5. Petitioner's February 19, 2013 motion for injunctive relief (dkt. no. 19) is denied;

6. Petitioner is granted thirty days from the date of this order in which to file a petition for writ of habeas corpus; and

7. The Clerk of the Court is directed to send petitioner the court's form for filing a petition for writ of habeas corpus.

20130409

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