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Johnny C. Thomas v. Gary Swarthout

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


September 26, 2012

JOHNNY C. THOMAS, PETITIONER,
v.
GARY SWARTHOUT, RESPONDENT.

ORDER

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

On August 31, 2012, the magistrate judge filed findings and recommendations, 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 seven days. Respondent has filed objections to the findings and recommendations, asserting that "it is unclear . . . whether the Magistrate Judge recommends respondent is foreclosed from moving to dismiss the Moe claim anew, on the grounds of procedural bar. To the extent the Magistrate Judge's Order may be so construed, respondent objects." ECF No. 57 at 2. Petitioner has also filed a reply to respondent's objections, arguing that his claim of ineffective assistance of counsel is not subject to any procedural bar. ECF No. 58

The district court does not construe the amended findings and recommendations to foreclose respondent from filing any motion as permitted by the Rules Governing Habeas Corpus and the Federal Rules of Civil Procedure. Moreover, as the magistrate judge observed, this is not the proper time for addressing the merits of any claimed procedural bar.

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 file, the court finds the findings and recommendations to be supported by the record and by the proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed August 31, 2012, are adopted in full; and 2. Respondent's motion to dismiss (Docket No. 15) is denied as to petitioner's claim of ineffective assistance of trial counsel Moe for the reasons set forth above.

20120926

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