Martinez v. Cate

Filing 28

ORDER on 26 FINDINGS AND RECOMMENDATION and REFERRING Matter to the Magistrate Judge signed by District Judge Anthony W. Ishii on 1/17/2015. (Sant Agata, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:11-cv-572 AWI MJS HC
DANIEL J. MARTINEZ,

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ORDER
ON
FINDINGS
AND
RECOMMENDATION AND REFERRING
Petitioner,
MATTER TO THE MAGISTRATE JUDGE

v.

[Doc. 26]

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MATTHEW CATE,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

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On June 19, 2014, the Magistrate Judge issued a Findings and Recommendation

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(“F&R”) that the Petition for Writ of Habeas Corpus be DENIED with prejudice. This F&R

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was served on all parties with notice that any objections were to be filed within thirty (30)

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days of the date of service of the order. Petitioner filed objections on July 25, 2014.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has

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conducted a de novo review of the case.

Having carefully reviewed the entire file,

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including Petitioner's objections, the Court concludes that the Magistrate Judge's F&R is

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generally supported by the record and proper analysis.

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However, the Court cannot adopt the F&R’s analysis of Petitioner’s seventh

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ground for relief. It appears that the F&R addresses an issue that was not actually
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raised by the Petitioner in his seventh ground. Therefore, the Court will adopt the F&R

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with respect to Petitioner’s first six claims, but will decline to adopt it with respect to the

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seventh claim. The Court will refer the matter back to the Magistrate Judge to issue a

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new Findings and Recommendation with respect to Petitioner’s seventh ground for relief.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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part as explained above;
2.

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The Findings and Recommendation issued June 19, 2014, is ADOPTED in

The first six grounds for relief raised in the Petition for Writ of Habeas
Corpus are DENIED;

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The

Court

respectfully

DECLINES

to

adopt

the

Findings

and

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Recommendation as to the Petition for Writ of Habeas Corpus’s seventh

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ground for relief; and

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4.

This matter is referred back to the Magistrate Judge for the issuance of a

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Findings and Recommendation with respect to the Petition for Habeas

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Corpus’s seventh ground for relief.

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IT IS SO ORDERED.
Dated: January 17, 2015
SENIOR DISTRICT JUDGE

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