-DAD (HC) Haller v. Biter, No. 2:2010cv03446 - Document 17 (E.D. Cal. 2011)

Court Description: ORDER signed by Judge William B. Shubb on 12/1/11 ORDERING that the court's November 14, 2011 order is Vacated; the Findings and Recommendations filed August 2, 2011, are again Adopted in Full; Petitioner's renewed motion for a stay and abeyance 10 is Denied; this matter is referred back to the assigned magistrate judge for further proceedings on petitioner's original petition for writ of habeas corpus. (Becknal, R)
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-DAD (HC) Haller v. Biter Doc. 17 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JAMES D. HALLER, Petitioner, 11 12 13 14 15 16 No. CIV S-10-3446 WBS DAD P vs. WARDEN BITER, Respondent. ORDER / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 18 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On August 2, 2011, the magistrate judge filed findings and recommendations 20 herein recommending that petitioner’s renewed motion for stay and abeyance be denied and that 21 the matter be referred back to the assigned Magistrate Judge for further proceedings. Those 22 findings and recommendations were served on petitioner and contained notice that any 23 objections to the findings and recommendations were to be filed within twenty-one days. On 24 September 2, 2011, the magistrate judge granted petitioner a sixty-day extension of time to file 25 objections to those findings and recommendations. The sixty-day period expired, and petitioner 26 had not filed objections to the findings and recommendations. On November 14, 2011, the court 1 Dockets.Justia.com 1 adopted the magistrate judge’s findings and recommendations in full and referred this matter 2 back to the magistrate judge for further proceedings. 3 On November 10, 2011, petitioner filed a document styled “Motion for Stay & 4 Abeyance” in one of his previously-closed cases. See Case No. CIV 08-1997 DFL GGH. On 5 November 22, 2011, Magistrate Judge Gregory H. Hollows reviewed the motion and determined 6 that petitioner erroneously wrote Case No. CIV 08-1997 DFL GGH on the motion. Magistrate 7 Judge Hollows ordered the Clerk of the Court to remove petitioner’s motion from Case No. CIV 8 08-1997 DFL GGH and file it in this case. 9 The undersigned has reviewed petitioner’s motion and will construe it as his 10 belated objections to the magistrate judge’s August 2, 2011 findings and recommendations. 11 Under these circumstances, and in the interest of justice, the undersigned will vacate its 12 November 14, 2011 order and consider petitioner’s objections as if they were timely filed in this 13 case. 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 15 304, this court has conducted a de novo review of this case. Having carefully reviewed the 16 entire file, the court finds the findings and recommendations to be supported by the record and 17 by proper analysis. 18 Accordingly, IT IS HEREBY ORDERED that: 19 1. The court’s November 14, 2011 order is vacated; 20 2. The findings and recommendations filed August 2, 2011, are again adopted in 21 full; 3. Petitioner’s renewed motion for a stay and abeyance (Doc. No. 10) is denied; 22 23 and 24 ///// 25 ///// 26 ///// 2 1 2 4. This matter is referred back to the assigned magistrate judge for further proceedings on petitioner’s original petition for writ of habeas corpus. 3 4 DATED: December 1, 2011 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3