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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

MICHAEL ANTHONY COX,

Petitioner,

v.

WARDEN, San Quentin State Prison,

Respondent.

No. 2:04-cv-00065-MCE-CKD

DEATH PENALTY CASE

ORDER

On May 27, 2015, the assigned Magistrate Judge held a hearing on Petitioner’s 

motions to perpetuate the testimony of eight witnesses (ECF Nos. 143, 146). The 

following day, the Magistrate Judge granted Petitioner’s motions with respect to seven of 

those witnesses. ECF No. 157. On June 26, 2015, Respondent filed a Request for 

Reconsideration of the Magistrate Judge’s Order. ECF No. 160. Petitioner filed an 

Opposition (ECF No. 162) on July 6, 2015.1 For the reasons that follow, Respondent’s 

Request is DENIED. 

First, Respondent seeks reconsideration of the Magistrate Judge’s ruling pursuant 

to Local Rule 303. See Request, ECF No. 160, at 1 (citing Local Rule 303). 

Respondent’s Request, however, is untimely under Local Rule 303(b), which provides: 

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 Respondent did not file a reply to Petitioner’s Opposition. Because more than seven days have 

passed since Petitioner filed his Opposition, any reply would be untimely, and Respondent’s Request for 

Reconsideration is deemed submitted. See E.D. Cal. Local R. 230(l). 

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Rulings by Magistrate Judges pursuant to this Rule shall be 

final if no reconsideration thereof is sought from the Court 

within fourteen (14) days calculated from the date of service 

of the ruling on the parties, unless a different time is 

prescribed by the Magistrate Judge or the Judge.

Because Respondent did not file his Request for Reconsideration until nearly a month 

after the Magistrate Judge’s Order, and because that Order did not prescribe more than 

fourteen days to file for reconsideration, the Request is untimely under Local Rule 303. 

Second, even if Respondent had timely filed the pending Request, Respondent 

has not demonstrated that the Magistrate Judge’s Order was clearly erroneous or 

contrary to law. See Local Rule 303(f). According to Respondent:

[A] court must at least consider the AEDPA restrictions when 

determining whether to permit the parties to depose 

prospective witnesses for the purpose of preserving their 

testimony for future use at an evidentiary hearing, just as a 

court must consider the AEDPA restrictions when 

determining whether to conduct an evidentiary hearing at all.

Request at 1. But the Magistrate Judge expressly found to the contrary and explained

that “Respondent ha[d] not established that permitting the perpetuation of testimony at 

this stage of the proceedings is inappropriate.” ECF No. 159 at 2. Following that finding 

was a citation to Cullen v. Pinholster, 131 S. Ct. 1388, 1411 n.20 (2011), in which the 

Supreme Court noted “we need not decide . . . whether a district court may ever choose 

to hold an evidentiary hearing before it determines that [28 U.S.C.] § 2254(d) has been 

satisfied.” Respondent’s fourteen-page Request fails to identify any authority that 

requires the Court to determine whether Petitioner must satisfy § 2254(d) before the 

Court may permit the perpetuation of testimony or hold an evidentiary hearing. 

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Accordingly, Respondent’s Request for Reconsideration (ECF No. 160) is 

DENIED.

IT IS SO ORDERED.

Dated: July 28, 2015

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