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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JEFFREY J. BIGGS, No. CIV-S-04-2667 MCE/CMK P

Petitioner, 

v. ORDER AFTER REMAND

ARNOLD SCHWARZENEGGER,

ET AL., 

Respondents.

 /

Petitioner, a state prisoner proceeding pro se, brings this

petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. On May 17, 2005, the court issued findings and

recommendations that this action be dismissed for failure to

exhaust state remedies. The findings and recommendations

provided for objections to be filed within 20 days. Petitioner

failed to file timely objections and, on June 30, 2005, the court

adopted the findings and recommendations and entered judgement

accordingly. 

///

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On July 12, 2005, petitioner filed a document entitled “Request

for Reconsideration fo Judge’s Order to Adopt the Magistrate’s

Findings and Recommendations and Denial.” This document was

docketed as a notice of appeal. On July 19, 2005, the appellate

court notified this court that the appeal had been docketed and

assigned an appellate case number. 

On August 10, 2005, after the appeal had been docketed in

the appellate court, this court issued an order construing

petitioner’s July 12, 2005, document as a request for an

extension of time to file objections to the May 17, 2005,

findings and recommendations. The court indicated, however, that

absent a remand from the appellate court, this court would lack

jurisdiction to consider petitioner’s request. The August 10,

2005, order was served on the appellate court. On October 24,

2005, the appellate court issued an order remanding this case to

this court to consider petitioner’s request for an extension of

time and to conduct further proceedings. The appellate court’s

mandate was filed in this court on November 16, 2005.

Pursuant to the appellate court’s remand, this court now has

jurisdiction. The court sua sponte vacates the June 30, 2005,

judgment as having been issued in error. See Fed. R. Civ. P.

60(a). Petitioner’s July 12, 2005, document is construed as a

request for an extension of time to file objections to the

court’s May 17, 2005, findings and recommendations and is

granted.

///

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Accordingly, IT IS HEREBY ORDERED that:

1. The judgment entered on June 30, 2005, is vacated as

having been issued in error;

2. Petitioner’s July 12, 2005, document is construed as a

request for an extension of time to file objections to the

court’s May 17, 2005, findings and recommendations and, so

construed, is granted; and

3. Petitioner may file objections within 20 days of the

date of service of this order.

DATED: December 1, 2005

_____________________________

MORRISON C. ENGLAND, JR

UNITED STATES DISTRICT JUDGE

Case 2:04-cv-02667-MCE -CMK Document 19 Filed 12/02/05 Page 3 of 3