Haynes v. Hartly

Filing 8

ORDER ADOPTING FINDINGS and RECOMMENDATIONS 6 , DISMISSING Ground Two from the Petition, and REFERRING Matter Back to the Magistrate Judge, Signed by Judge Oliver W. Wanger on 2/18/2009. (Arellano, S.)

1 2 3 4 5 6 7 8 9 10 11 12 LEON HAYNES, 13 Petitioner, 14 15 16 JAMES D. HARTLEY, Warden, 17 Respondent. 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. 21 On January 22, 2009, the Magistrate Judge issued a Findings and Recommendation that 22 recommended Ground Two be DISMISSED from the petition. The Findings and Recommendation 23 was served on all parties and contained notice that any objections were to be filed within thirty (30) 24 days of the date of service of the order. 25 On February 11, 2009, Petitioner filed objections to the Findings and Recommendation. 26 Petitioner contends Ground Two should not be dismissed because he is not challenging the 27 underlying conviction, but rather the execution of his sentence. Petitioner is either wrong, or 28
U . S . D i s t r ic t C o u r t E. D . C a lifo r n ia cd

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) 1:08-CV-01937 OWW SMS HC ORDER ADOPTING FINDINGS AND RECOMMENDATION [Doc. #6] ORDER DISMISSING CLAIM ORDER REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS

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U . S . D i s t r ic t C o u r t E. D . C a lifo r n ia

mistaken. Petitioner states in his petition he entered a plea bargain and was sentenced to a term of 15 years to life. Given the maximum of the term is "to life," it cannot be argued that the California Department of Corrections is holding him beyond the terms of his sentence. Thus, any challenge to the execution of the sentence is clearly meritless. On the other hand, if Petitioner is alleging he entered a plea agreement with the understanding that the term would be other than "15 years to life," then he is claiming his plea was not knowingly, voluntarily, or intelligently made. Such a claim attacks the sentence itself and must be made in the court of conviction. 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. Having carefully reviewed the entire file and having considered the objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis, and there is no need to modify the Findings and Recommendations based on the points raised in the objections. Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendation issued January 22, 2009, is ADOPTED IN FULL; 2. Ground Two is DISMISSED from the petition; 3. The matter is REFERRED back to the Magistrate Judge for further proceedings; and 4. As this is not a "final order" which disposes of all claims in the petition, a certificate of appealability is not required. 28 U.S.C. § 1291; Catlin v. United States, 324 U.S. 229, 233 (1945). IT IS SO ORDERED. Dated: February 18, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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