(HC)Hayes v. Neuschmid

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA BLUFFORD HAYES, Jr., No. 2:19-cv-01279-TLN-EFB 12 Petitioner, 13 v. ORDER ROBERT NEUSCHMID, 15 Respondent.

18 Petitioner Blufford Hayes Jr. (“Petitioner”), a state prisoner proceeding pro se,1 has filed this 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.

22 On June 25, 2020, the magistrate judge filed findings and recommendations herein which 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 fourteen (14) days. (ECF No. 36.)

25 1 The Court notes Petitioner was briefly represented pro bono by counsel Richard Such (see ECF Nos. 16, 17), during which time, counsel for Petitioner filed the Amended Petition (ECF No. 18) that is the subject of the motion for reconsideration (ECF No. 31) and the Findings and Recommendations currently under review (ECF No. 36). Thereafter, Petitioner filed a motion seeking to designate Mr. Such as his Court-appointed attorney, which the Court denied. (See ECF Nos. 20, 30.) As of the date of the instant Order, Petitioner is once more proceeding pro se.

1 Respondent Robert Neuschmid (“Respondent”) has filed objections to the findings and recommendations and Petitioner has filed a response thereto. (ECF Nos. 37, 38.)

3 The Court reviews de novo those portions of the proposed findings of fact to which objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed findings of fact to which no objection has been made, the Court assumes its correctness and decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).

11 Having carefully reviewed the entire file under the applicable legal standards, the Court finds the Findings and Recommendations to be supported by the record and by the magistrate judge’s analysis.

14 In its objections, Respondent argues the magistrate judge erred by arguing a point in Petitioner’s favor that Petitioner purportedly conceded — namely, that Mr. Such already knew the facts and theories of the case at the time of filing of the original Petition. (ECF No. 37 at 7.) This is a mischaracterization of the Findings and Recommendations. Read in context, the portion of the Findings and Recommendations referenced by Respondent relates to the magistrate judge’s analysis appropriately supporting the determination that three months between the initial and Amended Petition did not constitute undue delay. (See ECF No. 36 at 5.) Respondent’s objections are therefore overruled.

22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The Findings and Recommendations filed June 25, 2020 (ECF No. 36), are adopted in full; 25 2. Respondent’s “Motion to Dismiss Amended Petition for Writ of Habeas Corpus, Due to Undue Delay and Bad Faith Warranting Denial of Leave to Amend” (ECF No. 31) is construed as a Motion for Reconsideration and, so construed, is GRANTED; and /// 1 3. Upon reconsideration of the Order granting Petitioner leave to amend (ECF No. 17), the Order is AFFIRMED.

3 IT IS SO ORDERED.

4 DATED: November 24, 2020