Opinion
Case No. 1:13-cv-00814-AWI-SKO HC
07-24-2015
GUILLERMO VERA, Petitioner, v. CONNIE GIPSON, Respondent.
ORDER ADOPTING THE FINDINGS AND RECOMMENDATION FOR THE DENIAL OF THE MOTION TO SET ASIDE JUDGMENT AND DENIAL OF A CERTIFICATE OF APPEALABILITY (Docs. 44 and 45)
Petitioner is a state prisoner serving a determinate term for aggravated assault and an indeterminate term of thirty years to life for second degree murder. On May 30, 2013, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the matter to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
On July 16, 2013, following preliminary screening of the petition, the Magistrate Judge recommended that the Court dismiss Petitioner's first, second, third, and fourth claims, none of which were cognizable in a federal habeas proceeding. The Court adopted the recommendations on November 12, 2013, and referred the matter back to the Magistrate Judge for further proceedings on the remaining claim of a violation of due process in a parole hearing. On August 1, 2014, following consideration of matters addressed in the response and traverse, the Magistrate Judge recommended that the Court dismiss the petition for writ of habeas corpus without leave to amend. The Court adopted the Magistrate Judge's recommendation on September 12, 2014, and the Clerk of Court entered judgment for Respondent.
The dismissed claims included California state law claims and claims regarding conditions of confinement. --------
On January 8, 2015, Petitioner moved to vacate the judgment. Construing the motion to be governed by Federal Rule of Civil Procedure 60(b), the Magistrate Judge found that Petitioner advanced no grounds justifying relief from judgment and recommended that the motion be denied. The Findings and Recommendation, which was filed and served on all parties on February 20, 2015, provided that objections could be served within thirty days and replies within fourteen days after the filing of any objections.
Following multiple extensions of time, Petitioner filed objections on July 7, 2015. The objections re-argued the five claims set forth in the petition for writ of habeas corpus without articulating any specific basis for setting aside the judgment. Emphasizing that Petitioner's objections mainly restated Petitioner's claims regarding the conditions of his confinement, Respondent answered that Petitioner had not presented any basis for setting aside the judgment.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), having carefully reviewed the entire file de novo and considered Petitioner's objections, the Court finds that the Findings and Recommendation filed on February 20, 2015 is supported by the record and proper analysis. The Court declines to modify the Findings and Recommendation based on any point raised in the objections.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendation filed February 20, 2015 is ADOPTED in full;
2. Petitioner's motion to reopen the September 12, 2014 judgment is hereby DENIED; and
3. The Court DECLINES to issue a certificate of appealability. IT IS SO ORDERED. Dated: July 24, 2015
/s/_________
SENIOR DISTRICT JUDGE