The opinion of the court was delivered by: John W. Sedwick United States District Judge
[Re: Objections at docket 34]
Petitioner Matthew Mark Moore ("Moore") filed objections at docket 34 to an order issued by Magistrate Judge Smith at docket 33. Respondent Marc Okuley ("Okuley") filed his response to the objections at docket 36. The objections are now ripe for disposition by this court.
Moore was convicted in the Superior Court at Nome of attempted first and second degree sexual assault and burglary. He was sentenced to imprisonment for 12 years with four years suspended leaving eight years to serve in prison. He is before this court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pursuant to this court's standard practice,*fn1 and after appointing counsel for Moore, this case was referred to Magistrate Judge Smith for the purpose of hearing and deciding all procedural and discovery motions and resolving other pre-trial matters as well as preparation of a report and recommendation on the merits of the petition.*fn2 The referral authorized Magistrate Judge Smith to proceed with the case under the powers allowed to magistrate judges by 28 U.S.C. § 636 and Rule 8(b) of the Rules Governing 2254 Cases in The United States District Court ("Habeas Rules").
Counsel appointed for Moore filed a supplemental petition for a writ of habeas corpus.*fn3 The supplemental petition advances five claims for relief. Claim One contends that Moore's Sixth Amendment right to counsel was violated by the state trial judge's denial of his request for appointment of a new lawyer. Claim Two contends that Moore's Sixth Amendment right to counsel was violated when the state trial judge failed to adequately inquire into the conflict between Moore and his lawyer. Claim Three contends that Moore's Sixth Amendment right to counsel was violated when he was required to proceed with a lawyer of proven incompetence who also lacked the ability to communicate with Moore. Claim Four contends that Moore's Sixth Amendment right to a jury trial was violated when his sentence was increased based on facts that should have been determined by a jury, not the judge. Claim Five contends that Moore's Fifth Amendment right to due process was violated because his sentence was increased based on crimes committed when he was a juvenile.
Okuley filed a motion for summary adjudication.*fn4 In that motion, Okuley contends that Moores's claims relating to his sentence (Claims Four and Five) are barred by a procedural default. Okuley also contends that both the right to counsel claims (Claims One, Two, and Three) and his sentencing claims fail on the merits. Okuley takes the position that the undisputed facts support his contentions. Moore filed a response to Okuley's motion,*fn5 but also simultaneously filed a motion for a continuance to permit him to further develop a factual record pursuant to Habeas Rule 11 and Federal Rule of Civil Procedure 56(f).*fn6 Okuley opposed the motion for a continuance,*fn7 and after reviewing the motion papers the magistrate judge denied the motion for a continuance.*fn8 Her order is the subject of the pending objections.
Moore's motion for a continuance is a non-dispositive motion that falls within the ambit of the authority given to magistrate judges by 28 U.S.C. § 636(b)(1)(A) upon a district judge's referral of the case. This court may reconsider and set aside such an order "where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law."*fn9
A. Is Order Contrary to Law?
Moore argues, in effect, that Judge Smith's order is contrary to law, because her order allows Okuley to proceed with the underlying motion for summary adjudication on the merits and not merely with respect to possible procedural bars. Moore urges that this is inconsistent with Habeas Rule 4 and the ...