IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 6, 2012
UNITED STATES OF AMERICA, RESPONDENT,
EDUARDO ARELLANO-FELIX, MOVANT.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B).
On February 28, 2012, Magistrate Judge Bommer issued findings and recommendations. The findings and recommendations recommended that Respondent file an answer with respect to Claim I and that Claim II should be denied. The findings and recommendations were served on all parties and contained notice that any objections to the findings and recommendations were to be filed within twenty-one (21) days. Neither party has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the February 28, 2012 findings and recommendations to be supported by the record and by proper analysis.
Accordingly, it is hereby ORDERED that:
1. The findings and recommendations filed February 28, 2012 is adopted in full;
2. Respondent's motion (ECF No. 128) is GRANTED IN PART and DENIED IN PART. Respondent's motion to dismiss is GRANTED as to Movant's Claim II listed in the findings and recommendations and DENIED as to Claim I listed in the findings and recommendations; and
3. Respondent shall file an answer to Claim I of Movant's motion brought under 28 U.S.C. § 2255 within thirty (30) days. Within the answer, Respondent shall expressly state whether it objects to this Court vacating and reentering the judgment without a hearing to allow an appeal to proceed without deciding that Movant's Claim I is true. See United States v. Sandoval-Lopez, 409 F.3d 1193, 1198 (9th Cir. 2005).
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