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Manuel Hernandez, Jr v. Warden

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 10, 2012

MANUEL HERNANDEZ, JR.,
PETITIONER,
v.
WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge

ORDER VACATING ORDER OF OCTOBER 5, 2012 ADOPTING FINDINGS AND RECOMMENDATION (Doc. 36)

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On February 7, 2011, Petitioner filed a petition for writ of habeas corpus containing a single claim for relief. (Doc. 1). After requesting and receiving a stay of proceedings to exhaust an additional claim in state court, Petitioner filed a first amended petition on February 7, 2012 containing the original claim and a newly exhausted claim. (Doc. 27). On February 9, 2012, the Court ordered Respondent to file a response to the first amended petition. (Doc. 28). On April 10, 2012, Respondent filed a motion to dismiss ground two in the amended petition as untimely because it did not relate back to the original claim. (Doc. 32). On June 15, 2012, the Magistrate Judge assigned to the case filed a Findings and Recommendations recommending that Respondent's motion to dismiss be denied, concluding that the newly exhausted claim did relate back to the original claim. (Doc. 34). This Findings and Recommendations was served on all parties and contained notice that any objections were to be filed within twenty days from the date of service of that order. October 5, 2012, without any objections having been filed, the Court inadvertently issued an order adopting the Magistrate Judge's Findings and Recommendations to grant Respondent's motion and dismiss ground two, rather than to deny the motion to dismiss. (Doc. 36).

Accordingly, IT IS HEREBY ORDERED that the October 5, 2012 order adopting the Findings and Recommendations filed June 15, 2012 (Doc. 36), is VACATED.

IT IS SO ORDERED.

20121010

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