THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 20, 2009
ELI BRYSON, PETITIONER,
LARRY SMALL, RESPONDENT.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
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 15, 2009, 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. Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed July 15, 2009, are adopted in full; and
2. Respondent's motion to dismiss, filed on November 4, 2008 (docket # 15), is granted:
a) On the ground of petitioner's having failed to exhaust state court remedies as to the ineffective assistance of counsel argument raised in claim 2, and as to the abuse of trial/sentencing court discretion grounds raised in claims 4 and 5, and these arguments/grounds are stricken from the claims of the petition; and,
b) On the ground that claims 2 and 3 fail to state a federal question to the extent they rest on the state constitution and this portion of both claims are stricken; and further;
3. Claims 2, 4, and 5 are stricken as failing to set forth federal constitutional grounds upon which petitioner may proceed; and
4. Respondent is directed to file an answer to the petition, as modified, to claims 1 and 3 within 30 days of the filed date of this order, and petitioner is directed to thereafter file any traverse/reply within 30 days.
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