Johnson v. Brown
Filing
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ORDER adopting in full 17 FINDINGS AND RECOMMENDATIONS signed by District Judge Kimberly J. Mueller on 8/11/11. Respondent's 13 Motion to Dismiss is DENIED; and respondent is directed to file an answer to petitioner's amended petition WITHIN 60 days. (Kastilahn, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DAVID WAYNE JOHNSON,
Petitioner,
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vs.
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No. CIV S-10-1568 KJM DAD P
SWARTHOUT, Warden,
Respondent.
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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of
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habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate
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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On April 22, 2011, the magistrate judge filed findings and recommendations,
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which were served on all parties and which contained notice to all parties that any objections to
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the findings and recommendations were to be filed within twenty-one days. Neither party has
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filed objections to the findings and recommendations.
The court presumes that any findings of fact are correct. See Orand v. United
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States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are
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reviewed de novo. See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.
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1983). Having carefully reviewed the file, the court finds the findings and recommendations to
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be supported by the record and by the proper analysis.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The findings and recommendations filed April 22, 2011, are adopted in full;
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2. Respondent’s November 15, 2010 motion to dismiss (Doc. No. 13) is denied;
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and
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3. Respondent is directed to file an answer to petitioner’s amended petition
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within sixty days. See Rule 4, Fed. R. Governing § 2254 Cases. The answer shall be
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accompanied by all transcripts and other documents relevant to the issues presented in the
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petition. See Rule 5, Fed. R. Governing § 2254 Cases.
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DATED: August 11, 2011.
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UNITED STATES DISTRICT JUDGE
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/john1568.801hc
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