Joshua S Hill v. People San Bernardino SDC

Filing 23

ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Fernando M. Olguin for Report and Recommendation (Issued) 21 (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSHUA SPENCER HILL,

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Petitioner,
v.
KIM HOLLAND, Warden,

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Case No. ED CV 15-00542 FMO (AFM)
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED
STATES MAGISTRATE JUDGE

Respondent.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records

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on file herein, the Report and Recommendation of United States Magistrate Judge

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as well as the Objection in Part filed by respondent. The Court has engaged in a

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de novo review of those portions of the Report to which objections have been filed.

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The Court accepts the findings and recommendations of the Magistrate Judge and

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adds that, as noted by respondent’s objection, the failure of the Petition to name a

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custodian provides a further ground for dismissal.

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Supreme Court, 21 F.3d 359 (9th Cir. 1994). With regard to respondent’s other

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objection that the Petition should be dismissed with prejudice, this objection is

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overruled. For Grounds Two through Five of the Petition, petitioner could arguably

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reassert these allegations in a section 1983 action, even though they do not state a

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habeas claim.

See Stanley v. California

Even as to Ground One, petitioner could conceivably cure the

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deficiency by alleging that his plea was involuntary. In addition, the failure to

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name a custodian as respondent could be subject to cure in a subsequent petition.

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Accordingly, dismissal without prejudice is appropriate.

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DATED: October 15, 2015

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_____________/s/____________________
FERNANDO M. OLGUIN
UNITED STATES DISTRICT JUDGE

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