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Alcala v. Martel

United States District Court, E.D. California

March 26, 2014

JOSEPH G. ALCALA, Petitioner,
v.
MIKE MARTEL, et al., Respondents.

ORDER

KIMBERLY J. MUELLER, District Judge.

Petitioner, a state prisoner proceeding pro se, has filed this 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 January 3, 2014 the magistrate judge filed findings and recommendations herein, were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days. Respondent has 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 file, the court finds the findings and recommendations to be supported by the record and by the proper analysis. The court notes in particular that the Ninth Circuit has found, in similar cases brought by indigent prisoners, that the State bears the burden of producing court records. See, e.g., Andrews v. King, 398 F.3d 1113, 1119-20 (9th Cir. 2005) ("[C]onsiderations of policy and fairness militate in favor of imposing the burden on the State defendants to produce evidence to demonstrate that the prisoner should be denied IFP status because he had three strikes under § 1915(g).").

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed January 3, 2014, are adopted in full;

2. Respondent's July 5, 2013 motion to dismiss is denied; and

3. Respondents are directed to file an answer to petitioner's petition within sixty days of this order. See Rule 4, Fed. R. Governing § 2254 cases.


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