UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 8, 2011
JAMES D. HARTLEY,
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER RE: FINDINGS AND
RECOMMENDATIONS AND REFERRING THE MATTER BACK TO THE
MAGISTRATE JUDGE (Docs. 1, 5)
ORDER DISMISSING PETITIONER'S FIRST, SECOND, THIRD, AND FIFTH
CLAIMS WITHOUT LEAVE TO AMEND (Doc. 1)
ORDER DISMISSING PETITIONER'S FOURTH CLAIM WITH LEAVE TO AMEND AND DIRECTING THE FILING OF A FIRST AMENDED PETITION NO LATER THAN TEN DAYS AFTER THE DATE OF SERVICE OF THIS ORDER (Doc. 1)
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
On February 24, 2011, the Magistrate Judge filed findings and recommendations to dismiss some claims in the petition without leave to amend and to dismiss other claims with leave to amend. The findings and recommendations were served on all parties on the same date. The findings and recommendations informed Petitioner that objections were due within thirty days of service.
On March 28, 2011, Petitioner filed objections to the findings and recommendations. In the objections, Petitioner consented to the dismissal of his first, second, third, and fifth claims without leave to amend. Further, he indicated that he was filing a first amended petition concerning his fourth claim.
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. The undersigned has carefully reviewed the entire file and has considered the objections; the undersigned has determined there is no need to modify the findings and recommendations based on the points raised in the objections. The Court finds that the report and recommendation is supported by the record and proper analysis.
Accordingly, it IS ORDERED that:
1) The findings and recommendations filed on February 4, 2011, are ADOPTED in full; and
2) The first, second, third, and fifth claims in the petition for writ of habeas corpus are DISMISSED without leave to amend for failure to state claims cognizable in a proceeding pursuant to 28 U.S.C. § 2254; and
3) The fourth claim or set of sub-claims concerning due process and double jeopardy relating to prior convictions used in sentencing is DISMISSED with leave to amend, and Petitioner may FILE a first amended petition no later than ten days after the date of service of this order; and
4) Pursuant to local rule, the matter is referred back to the Magistrate Judge for further screening of the first amended petition.IT IS SO ORDERED.
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