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Wanton v. Virga

United States District Court, S.D. California

February 14, 2014

GREGORY WANTON, Petitioner,
v.
TIM VIRGA, et al., Respondents.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

MICHAEL M. ANELLO, District Judge.

Petitioner Gregory Wanton, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to Title 28 of the United States Code, section 2254, challenging his May 4, 2009 conviction for, inter alia, first degree murder, and his sentence of an indeterminate term of seventy-five years to life in prison with a consecutive determinate term of nine years. See Doc. No. 1. United States Magistrate Judge Ruben B. Brooks previously determined that the petition contains both exhausted and unexhausted claims. See Doc. No. 11. Judge Brooks advised Petitioner of his options to avoid dismissal of his "mixed" petition. Id. On January 8, 2014, Respondents filed a motion seeking clarification of the instant proceedings. See Doc. No. 13. Judge Brooks granted the motion and has issued a well-reasoned Report recommending dismissal without prejudice of Petitioner's unexhausted claim 5 so that Petitioner may proceed as to claims 1 through 4 of his petition. See Doc. No. 14. Neither party has objected to Judge Brook's Report and Recommendation.

After reviewing the Report and Recommendation, the Court finds that Judge Brooks' conclusions are thorough, well-reasoned, and supported by the record. In light of the foregoing, and the fact that neither party filed objections, the Court hereby ADOPTS the Report and Recommendation in its entirety and DISMISSES WITHOUT PREJUDICE claim 5 of the petition.

IT IS SO ORDERED.


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