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Paul Samuel Johnson v. Gary Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 20, 2012

PAUL SAMUEL JOHNSON, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On August 2, 2012, the magistrate judge filed findings and recommendations herein (ECF No. 20) which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within fourteen days. Respondent has filed objections to the findings and recommendations. (ECF No. 21).

Although it appears from the file that petitioner's copy of the findings and recommendations was returned, petitioner was properly served. It is the petitioner's responsibility to keep the court apprised of his current address at all times.

Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully effective.

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 findings and recommendations to be supported by the record and by proper analysis.

In particular, the Court notes that, in Respondent's Objection, (ECF No. 21), Respondent does not allege any error in the magistrate's findings and recommendations. See Fed. R. Civ. P. 72(b)(2). Instead, Respondent has moved to dismiss the Petition as procedurally barred. (Id.) Respondent's argument is outside the scope of the original Motion to Dismiss, because Respondent's original motion alleged only that Petitioner had failed to exhaust his claims in the state courts. (See ECF No. 13). To the extent Respondent seeks dismissal of the petition on grounds not previously alleged, Respondent may do so in a properly noticed motion.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed August 2, 2012, are ADOPTED IN FULL;

2. Petitioner's request to stay these habeas proceedings (ECF No. 19) is DENIED AS MOOT;

3. Respondent's motion to dismiss (ECF No. 13) is DENIED; and

4. Respondent is directed to file a response to the petition within 60 days of service of this order.

20120920

© 1992-2012 VersusLaw Inc.



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