Girley v. Swarthout

Filing 39

ORDER ADOPTING 33 FINDINGS and RECOMMENDATIONS, in full, signed by Judge Kimberly J. Mueller on 2/28/2014. Petitioner's 31 Motion for Stay and to Amend is DENIED. Petitioner granted 30 days in which to file a Reply to respondent's Answer. Court is DECLINING to issue Certificate of Appealability. Petitioner may NOT appeal denial of Motion to Stay and to Amend because it is an Interlocutory Order, not a Final Judgment. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS DWAYNE GIRLEY,

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Petitioner,

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No. 2:12-cv-1938 KJM KJN P

v.

ORDER

GARY SWARTHOUT,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas

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corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as

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provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On October 11, 2013, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within twenty-one days. Petitioner has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the file, the court

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finds the findings and recommendations to 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 October 11, 2013 (ECF No. 33), are adopted

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in full;

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2. Petitioner’s motion for stay and to amend (ECF No. 31) is denied;

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3. Petitioner is granted thirty days in which to file a reply to respondent’s answer; and

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4. The court declines to issue the certificate of appealability referenced in 28 U.S.C.

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§ 2253. Petitioner may not appeal the denial of a motion to stay and to amend because it is an

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interlocutory order, not a final judgment.

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DATED: February 28, 2014.

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UNITED STATES DISTRICT JUDGE

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