The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Petitioner, through his counsel, has withdrawn his request for an evidentiary hearing on the D.N.A. evidence (related to claim five, the actual innocence claim), conceding petitioner's counsel's belief, following further testing, that the D.N.A. evidence will not provide at a hearing the requisite affirmative evidence of actual innocence. With this concession, and because the DNA claim could not be timely (or found meritorious) without such a a hearing, the undersigned recommends that respondent's motion to dismiss be granted as to claim five as well. See Findings and Recommendations, filed on November 12, 2009 (Docket # 40); see also, Order, filed on January 4, 2010 (Docket # 47). Although these Findings and Recommendations, as well as those at docket # 40, remain pending before the district judge at this time, the court will now set forth the briefing schedule on the remaining claim, claim one, at this time.
Accordingly, IT IS ORDERED that: 1. The Clerk of the Court is to substitute as the respondent, pursuant to Fed. R. Civ. P. 25(d), Fernando Gonzalez in place of Tom L. Carey in the docket of this case;
2. Respondent shall file an answer, within sixty days, accompanied by all transcripts and other documents relevant to the remaining claim, claim one of the second amended petition. See Rule 5, Fed. R. Governing § 2254 Cases; and
3. Petitioner's reply, if any, shall be filed and served within twenty-eight days after service of the answer.
IT IS HEREBY RECOMMENDED that respondent's motion to dismiss, filed on June 29, 2009 (Docket # 33), be granted, in addition as to claims two, three, and four, as previously recommended, but also as to claim five, and this matter proceed only as to claim one (1) of the second amended petition.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within seven days after service of the objections. The parties are advised that failure to ...