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Tommy Corral v. F. Gonzalez

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


April 8, 2013

TOMMY CORRAL,
PETITIONER,
v.
F. GONZALEZ, WARDEN, ET AL.,
RESPONDENTS.

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

ORDER RE: FINDINGS AND RECOMMENDATIONS (DOC. 8) ORDER DISMISSING SOME CLAIMS IN THE PETITION (DOC. 1) WITHOUT LEAVE TO AMEND, DISMISSING ONE CLAIM WITH LEAVE TO AMEND, AND GRANTING PETITIONER LEAVE TO FILE A FIRST AMENDED PETITION NO LATER THAN THIRTY (30) DAYS AFTER SERVICE OF THIS ORDER

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 through 304.

On February 20, 2013, the Magistrate Judge filed findings and recommendation to dismiss as successive Petitioner's claims insofar as they challenged gang validation proceedings that occurred in 2008; to dismiss without leave to amend his ex post facto, First Amendment, and equal protection claims; and to dismiss his procedural due process claim with leave to file a first amended petition with respect to that claim. The findings and recommendations were served on Petitioner on the same date and informed him that objections could be filed within thirty (30) days after service. On March 29, 2013, Petitioner filed objections to the findings and recommendations which the Court considers to have been timely 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) Insofar as Petitioner's claims challenge his gang validation proceedings that occurred in 2008, the claims are DISMISSED without leave to amend as successive claims; and

2) Petitioner's ex post facto claim is DISMISSED without leave to amend; and

3) Petitioner's First Amendment claim is DISMISSED without leave to amend; and

4) Petitioner's equal protection claim is DISMISSED without leave to amend; and

5) Petitioner's procedural due process claim is DISMISSED with leave to file a first amended petition with regard to that claim; and

6) Petitioner is GRANTED thirty (30) days from the date of service of the Court's order to file an amended petition alleging a procedural due process claim in compliance with the findings and recommendations.

IT IS SO ORDERED.

20130408

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