Ashley v. Singh

Filing 25

ORDER signed by District Judge Troy L. Nunley on 2/24/14 ORDERING that: the February 21, 2014 Order and Judgment (ECF Nos. 23 , 24 ) are vacated; the findings and recommendations filed November 26, 2013, are adopted in full; Respondent's motio n to dismiss is granted (ECF No. 12 ); Petitioner's petition for writ of habeas corpus is dismissed without prejudice for failing to exhaust state court remedies (ECF No. 1 ); Petitioner's first amended habeas corpus petition is dismissed without prejudice and with leave to amend for failing to state his claims of relief with sufficient specificity (ECF No. 16 ); and Petitioner shall file a reply to respondent's answer within thirty days from the date of this order. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY ASHLEY,

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No. 2:13-cv-1126 TLN AC

Petitioner,
v.

AMENDED ORDER

SINGH,
Respondent.

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

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

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On November 26, 2013, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to petitioner that he may file a

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second amended petition or objections to the findings and recommendations within thirty days.

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This court entered an order adopting the magistrate’s findings and recommendations along with

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an accompanying final judgment order on February 21, 2014. ECF Nos. 23, 24. The final order

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erroneously stated that no second amended habeas corpus petition had been filed by petitioner.

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However, the record demonstrates that petitioner filed a second amended petition on January 13,

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2014. ECF No. 20.

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Pursuant to Rule 60(a) of the Federal Rules of Civil Procedure, the court “may correct a
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clerical mistake or a mistake arising from oversight or omission whenever one is found in a

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judgment, order, or other part of the record.” Id. In light of the second amended habeas corpus

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petition which respondent has answered, ECF No. 22, the court will set aside its previous order

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and judgment of February 21, 2014.

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Upon a renewed review of the file, the court finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. In addition, the court has noted

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the parties subsequent filings. Accordingly, IT IS HEREBY ORDERED that:

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1. The February 21, 2014 Order and Judgment (ECF Nos. 23, 24) are vacated;

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2. The findings and recommendations filed November 26, 2013, are adopted in full;

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3. Respondent’s motion to dismiss is granted (ECF No. 12);

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4. Petitioner’s petition for writ of habeas corpus is dismissed without prejudice for failing

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to exhaust state court remedies (ECF No. 1);

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5. Petitioner’s first amended habeas corpus petition is dismissed without prejudice and

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with leave to amend for failing to state his claims of relief with sufficient specificity (ECF No.

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16); and,

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6. Petitioner shall file a reply to respondent’s answer within thirty days from the date of

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this order.

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Dated: February 24, 2014

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