UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 18, 2011
GEORGE K. COLBERT,
L. L. SCHULTEIS,
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER RE: FINDINGS AND ) RECOMMENDATIONS RE: RESPONDENT'S ) MOTION TO DISMISS THE PETITION (DOCS. 15, 14, 1, 8)
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS THE PETITION (DOC. 14)
ORDER DISMISSING PETITION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEAL AND DIRECTING THE CLERK TO CLOSE THE CASE
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 May 31, 2011, the Magistrate Judge filed findings and recommendations to deny Respondent's motion to dismiss the petition on the ground of untimeliness, grant Respondent's motion to dismiss the petition for failure to exhaust state court remedies, dismiss the petition without prejudice for failure to exhaust state court remedies, decline to issue a certificate of appealability, and direct the clerk to close the case.
The findings and recommendations were served on all parties on the same date, and they advised all parties that objections to the findings and recommendations could be filed within thirty
(30) days, and replies within fourteen (14) days after the filing of any objections.
On June 29, 2011, Respondent filed timely objections. Although the time for filing a reply has passed, no reply has been filed.
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 findings and recommendations are supported by the record and proper analysis.
Accordingly, it is ORDERED that:
1) The Findings and Recommendations filed on May 31, 2011, are ADOPTED IN FULL; and
2) Respondent's motion to dismiss the petition for Petitioner's failure to exhaust state court remedies is GRANTED; and
3) The petition is DISMISSED without prejudice for failure to exhaust state court remedies; and
4) The Court DECLINES to issue a certificate of appealability; and
5) The Clerk is DIRECTED to close the case.
IT IS SO ORDERED.
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