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Cowans v. Hartley

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 19, 2010

RANDALL KEITH COWANS, PETITIONER,
v.
WARDEN JAMES D. HARTLEY, RESPONDENT.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 18)

ORDER DENYING RESPONDENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION (Doc. 11)

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS FOR LACK OF EXHAUSTION (Doc. 11)

ORDER PERMITTING PETITIONER FIFTEEN DAYS TO WITHDRAW UNEXHAUSTED CLAIMS AND PROCEED ON GROUND THREE OR HAVE PETITION DISMISSED

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On May 13, 2009, Respondent filed a motion to dismiss the petition, contending that the Court lacked habeas jurisdiction over the petition and that the petition should be dismissed as a mixed petition because Grounds One and Two were not exhausted. (Doc. 11). On February 11, 2010, the Magistrate Judge assigned to the case filed a Findings and Recommendations recommending that Respondent's motion to dismiss for lack of jurisdiction be denied and that the motion to dismiss for unexhausted claims be granted. (Doc. 18). This Findings and Recommendations was served on all parties and contained notice that any objections were to be filed within twenty days from the date of service of that order. On March 2, 2010, Respondent filed objections to that portion of the Magistrate Judge's Findings and Recommendations relating to the issue of lack of jurisdiction. (Doc. 19). To date, Petitioner has not filed objections.

In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file, including Respondent's objections, the Court concludes that the Magistrate Judge's Findings and Recommendations is supported by the record and proper analysis. Respondent's objections present no grounds for questioning the Magistrate Judge's analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The Findings and Recommendations, filed February 11, 2010 (Doc. 18), is ADOPTED IN FULL;

2. Respondent's Motion to Dismiss for lack of jurisdiction (Doc. 11), is DENIED;

3. Respondent's Motion to Dismiss for lack of exhaustion as to Grounds One and Two (Doc. 11), is GRANTED;

4. Petitioner is granted fifteen days from the date of service of this order in which to file a motion to withdraw the unexhausted claims and proceed on the remaining claim, i.e., Ground Three. If Petitioner fails to file such a motion within the time provided by this order, the Court will dismiss the petition as a mixed petition containing unexhausted claims.

IT IS SO ORDERED.

20100319

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