Cummings v. Duvey

Filing 12

ORDER ADOPTING FINDINGS And RECOMMENDATIONS, Granting Respondent's Motion To Dismiss, And Dismissing Petition (Doc. 9 and 11 ), signed by Chief Judge Anthony W. Ishii on 1/16/2009. It is ORDERED that: The findings and recommendations issued by the Magistrate Judge on November 6, 2008, are adopted in full. Respondent's motion to dismiss is GRANTED. The petition for writ of habeas corpus is DISMISSED without prejudice for failure to exhaust state judicial remedies. The Clerk of the Court is directed to close this case. CASE CLOSED.(Scrivner, E)

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 18 U.S.C. § 2254 . The matter was referred to a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b)(1)(B) and Local Rule 72-302. 20 On November 6, 2008, the Magistrate Judge filed findings and recommendations that 21 recommended respondent's motion to dismiss be granted and the petition be dismissed for 22 Petitioner's failure to exhaust state remedies. These findings and recommendations were served 23 on the parties and contained notice to the parties that any objections to the findings and 24 recommendations were to be filed within thirty days. No party filed objections. 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)C) this court has conducted a 26 de novo review of this case. 27 28 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully reviewed the entire file, the court finds the findings and ) ) Petitioner, ) v. ) ) JOHN DUVEY, ) ) Respondent. ) ) ____________________________________) MARIO CUMMINGS, 07-cv-1612 AWI WMW HC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT'S MOTION TO DISMISS, AND DISMISSING PETITION [Doc. 9,11]

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recommendations to be supported by the record and by proper analysis. Based on the foregoing, it is HEREBY ORDERED that: 1. The findings and recommendations issued by the Magistrate Judge on November 6, 2008, are adopted in full; 2. 3. Respondent's motion to dismiss is GRANTED; The petition for writ of habeas corpus is DISMISSED without prejudice for failure to exhaust state judicial remedies; and 4. The Clerk of the Court is directed to close this case.

IT IS SO ORDERED. Dated: 0m8i78 January 16, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE

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