IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 15, 2008
AUGUSTINE OLIVO, PETITIONER,
CONSTANCE REESE, WARDEN, ET AL., RESPONDENTS.
Petitioner, a state prisoner proceeding pro se, has filed an 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 General Order No. 262.
On July 31, 2008, 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 twenty days. Neither party has filed objections to the findings and recommendations.
The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis. Because Olivo raises the same arguments that have been raised in Rodriguez v. Smith, 2007 WL 1521045 (E.D. Cal 2007), presently pending on appeal to the Ninth Circuit, and as explained in respondents' motion, if respondents prevail Olivo's petition will be meritless, but if respondents do not prevail, they will honor the Ninth Circuit's decision and Olivo's petition will not be necessary.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed July 31, 2008, are adopted in full; and
2. Respondent's January 9, 2008, motion to dismiss is granted.
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