IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 23, 2009
JASON DOUGLAS MCEVOY, PETITIONER,
Petitioner, a state prisoner proceeding pro se, brings this petition 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 Eastern District of California local rules.
On December 29, 2008, the Magistrate Judge filed findings and recommendations herein which were served on the parties and which contained notice that the parties may file objections within a specified time. Timely objections to the findings and recommendations have been filed.
In his objections, petitioner states that his claim is based on Cunningham v. California, 127 S.Ct. 856 (2007), and that the Magistrate Judge erred by not referencing that case in the findings and recommendations. The holding in Cunningham, however, does not alter the Magistrate Judge's analysis or conclusion that petitioner's claims are plainly meritless because petitioner's upper term sentence was based on facts found by the jury.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed December 29, 2008, are adopted in full;
2. This action is summarily dismissed; and 3. The Clerk of the Court is directed to enter judgment of dismissal and close this file.
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