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Bailey v. Almager

March 13, 2009

LARRY EDWARD BAILEY, PETITIONER,
v.
V.M. ALMAGER, RESPONDENT.



ORDER

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 February 6, 2009, 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.*fn1

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 following.

The Magistrate Judge provided two alternate grounds for his recommendations. First, the Magistrate Judge recommended finding that the petitioner's petition for writ of habeas corpus was untimely, and thereby barred by the statute of limitations. Second, the Magistrate Judge recommended that the petition be dismissed as second or successive. Because the first reason is sufficient, and supported by the record and by proper analysis, the court does not consider the second.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed February 6, 2009, are adopted except for part II;

2. Respondent's motion to dismiss (Doc. 9) is granted;

3. The petition for writ of habeas corpus is dismissed as untimely; and

4. The Clerk of the Court is directed to enter judgment and ...


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