(HC) Berry v. McDonald, No. 1:2012cv00901 - Document 36 (E.D. Cal. 2014)
Court Description: ORDER DISREGARDING Petitioner's 30 Purported Withdrawal of Consent; ORDER DEEMING Petitioner's 29 Objection to be a Request to Reconsider the Order to Supplement the Answer; ORDER DENYING Petitioner's 29 Request for Reconsideration; ORDER GRANTING Petitioner's 35 Request for an Extension of Time to File a Traverse to the Supplement to the Amended Answer, signed by Magistrate Judge Barbara A. McAuliffe on 12/10/2014. Sixty Day Deadline. (Marrujo, C)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 SPENCER E. BERRY, Case No. 1:12-cv-00901-BAM-HC 12 ORDER DISREGARDING PETITIONER’S PURPORTED WITHDRAWAL OF CONSENT (DOC. 30) Petitioner, 13 14 ORDER DEEMING PETITIONER’S OBJECTION TO BE A REQUEST TO RECONSIDER THE ORDER TO SUPPLEMENT THE ANSWER (DOC. 29) v. 15 16 ORDER DENYING PETITIONER’S REQUEST FOR RECONSIDERATION (DOC. 29) 17 McDONALD, 18 Respondent. 19 ORDER GRANTING PETITIONER’S REQUEST FOR AN EXTENSION OF TIME TO FILE A TRAVERSE TO THE SUPPLEMENT TO THE AMENDED ANSWER (DOC. 35) 20 21 Petitioner is a state prisoner proceeding pro se and in forma 22 pauperis with a petition for writ of habeas corpus pursuant to 28 23 U.S.C. § 2254. Pursuant to 28 U.S.C. 636(c)(1), the parties have 24 consented to the jurisdiction of the United States Magistrate Judge 25 to conduct all further proceedings in the case, including the entry 26 of final judgment, by manifesting their consent in writings signed 27 by the parties or their representatives and filed by Petitioner on 28 May 31, 2012, and on behalf of Respondent on September 26, 2012. 1 1 Pending before the Court are Petitioner’s purported withdrawal of 2 consent to Magistrate Judge jurisdiction filed on November 7, 2014 3 (doc. 30), and Petitioner’s request for a sixty-day extension of 4 time to file objections, which was filed on December 8, 2014. 5 I. Background 6 The petition was filed on May 18, 2012, and transferred to this 7 division of this Court on June 1, 2012. On June 5, 2012, the Court 8 dismissed without leave to amend Petitioner’s state claims. 9 Respondent filed an answer and amended answer on October 4, 2012, 10 and Petitioner filed a traverse on October 26, 2012. On August 15, 11 2014, Petitioner filed a motion for a ruling in which he argued that 12 his sentence would soon expire. In reviewing the merits of the 13 case, the Court determined that Respondent had failed to address 14 Petitioner’s ineffective assistance of counsel (IAC) claims. On 15 October 27, 2014, the Court exercised its discretion to obtain 16 further briefing from the parties and directed Respondent to file in 17 thirty days a supplemental answer addressing the IAC claims. On 18 November 7, 2014, Petitioner filed objections in which he asserted 19 that any issue not addressed in the initial answer should be 20 admitted; in effect, Petitioner asserted that he is entitled to a 21 default judgment in his favor on the IAC claims. (Doc. 29.) On 22 November 24, 2014, Respondent filed a ten-page supplemental answer 23 addressing the IAC claims. 24 II. Purported Withdrawal of Consent 25 On November 7, along with his objections to the Court’s 26 supplemental briefing order, Petitioner filed a document entitled as 27 a withdrawal of consent in which he stated that he thereby rescinded 28 consent to the jurisdiction of the Magistrate Judge. 2 Petitioner had 1 filed consent to Magistrate Judge jurisdiction once on May 31, 2012, 2 before the case was transferred (doc. 4), and again after the 3 transfer on June 11, 2012 (doc. 11). Petitioner indicated on the 4 consent forms that he voluntarily consented to the jurisdiction of 5 the Magistrate Judge to conduct all further proceedings in the case. 6 Although a party to a civil case in a federal district court 7 generally has a constitutional right to proceed before an Article 8 III judge, the right may be waived, and thus a party may consent to 9 the jurisdiction of a United States Magistrate Judge to conduct all 10 proceedings in a case. Dixon v. Ylst, 990 F.2d 478, 479-80 (9th 11 Cir. 1993); Pacemaker Diagnostic Clinic of America, Inc. v. 12 Instromedix, Inc., 725 F.2d 537, 541 (9th Cir. 1984) (en banc), 13 cert. den. 469 U.S. 824 (1984). Once a civil case is referred to a 14 Magistrate Judge under section 636(c) pursuant to the consent of the 15 party, the reference can be vacated by the Court only “for good 16 cause shown on its own motion, or under extraordinary circumstances 17 shown by any party....” 28 U.S.C. § 636(c)(4); Fed. R. Civ. P. 18 73(b)(3); Dixon v. Ylst, 990 F.2d at 480. There is no absolute 19 right to withdraw consent to proceedings before a Magistrate Judge. 20 Id. It is correct not to vacate a reference where a party has 21 consented in a signed writing to Magistrate Judge jurisdiction, the 22 party fails to make a motion to vacate the reference that is 23 supported by a showing of extraordinary circumstances, and the Court 24 does not sua sponte find good cause for withdrawal of consent. 25 Id. At the time the present case was transferred to this district, 26 Petitioner, who was the only party who had appeared in the action, 27 had consented to the jurisdiction of the Magistrate Judge to proceed 28 with the case to final judgment. Petitioner again consented to 3 1 Magistrate Judge jurisdiction after transfer. Thus, the case 2 proceeded before the undersigned Magistrate Judge pursuant to Local 3 Rule 301, which provides that upon the consent of all appearing 4 parties, Magistrate Judges are specially designated to conduct any 5 and all proceedings in any civil action, including the conduct of 6 trials and the entry of final judgment, in accordance with Fed. R. 7 Civ. P. 73 and 28 U.S.C. § 636(a)(5) and (c). Further, Appendix A 8 to the Local Rules of the United States District Court, Eastern 9 District of California expressly provides that in a habeas corpus 10 action, after notice regarding consent to assignment has gone out, 11 if not all named parties have appeared but all who have appeared 12 have consented, the Magistrate Judge shall act in the action 13 pursuant to 28 U.S.C. § 636(c) until the action is reassigned to a 14 District Judge. 15 App. A (k)(3), (4). Here, the Court finds that Petitioner consented to the 16 jurisdiction of the United States Magistrate Judge to conduct all 17 further proceedings in the case, including the entry of final 18 judgment, by manifesting his voluntary consent in signed writings 19 filed on May 31, 2012, and June 11, 2012. Petitioner has sought to 20 withdraw his consent without any motion or showing of any 21 extraordinary circumstances or other legally sufficient basis for 22 withdrawal of consent. 23 appears. No good cause for withdrawal of consent Under the circumstances, the Court concludes that 24 Petitioner’s purported withdrawal of consent was ineffective, and it 25 must be disregarded. 26 III. Petitioner’s Objection and Request for Extension of Time 27 On December 8, 2014, Petitioner filed a request for a sixty-day 28 extension of time pending a ruling on his objection to the Court’s 4 1 order directing a supplemental answer. Petitioner relies on the 2 fact that in his traverse, he stated that Respondent had failed to 3 address his IAC claims in the answer; further, under California and 4 federal procedural rules, matters not denied may be, and here should 5 be, deemed admitted. 6 The Court’s order for further briefing was an administrative 7 order. The Court exercised its discretion to obtain further 8 briefing quickly on the IAC claims with the goal of reaching a 9 decision on the merits of all of Petitioner’s claims in the least 10 amount of time. 11 It is possible that Petitioner’s objection to the order is 12 intended to be a motion for reconsideration. To the extent that 13 Petitioner seeks reconsideration of the order, the motion for 14 reconsideration will be denied. Input from the parties will ensure 15 that the Court is presented with an adequate analysis of the state 16 court record and the multiple legal issues; input should likewise 17 reduce the time needed for the Court to come to a decision. 18 Petitioner has set forth no circumstances, new or otherwise, that 19 would warrant a different order. 20 To the extent that Petitioner maintains that he is entitled to 21 judgment by default, Petitioner is mistaken. It is the Petitioner’s 22 burden to show that he or she is in custody in violation of the laws 23 of the United States. 24 (2003). Miller-El v. Cockrell, 537 U.S. 322, 358 n.3 Even if Respondent has failed to file a timely response to 25 some claims, a failure by state officials to comply timely with the 26 deadlines set by the Court does not relieve Petitioner of the burden 27 of proof or entitle him to entry of a default or a default judgment. 28 Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990). 5 The Court 1 understands Petitioner’s objections but must continue to decide 2 cases while experiencing high caseloads and suffering from limited 3 resources. 4 In its order directing supplemental briefing, the Court 5 directed Petitioner to file a traverse to the supplemental answer no 6 later than thirty (30) days after service. (Doc. 28.) Petitioner 7 has now requested an extension of sixty days, which the Court 8 understands to be a request for an extension within which to file a 9 traverse to the supplemental answer. The Court will grant the 10 extension. 11 IV. Disposition 12 Accordingly, it is ORDERED that: 13 1) Petitioner’s purported withdrawal of consent to Magistrate 14 Judge jurisdiction is DISREGARDED; and 15 2) Petitioner’s request for reconsideration of the order to 16 supplement the answer is DENIED; and 17 3) Petitioner’s request for an extension of time to file a 18 traverse to the supplement to the amended answer is GRANTED; 19 Petitioner shall FILE his traverse no later than sixty (60) days 20 after the date of service of this order. 21 IT IS SO ORDERED. 22 23 Dated: /s/ Barbara December 10, 2014 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6
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