Pereira v. Swarthout

Filing 40

ORDER signed by District Judge Kimberly J. Mueller on 03/23/17 adopting in full 38 FINDINGS AND RECOMMENDATIONS. Respondent's motion to dismiss 34 is granted in part and Grounds 1-3 and 5-8 in petitioner's first amended petition for wri t of habeas corpus are dismissed as unexhausted. The case shall proceed on ground 4 of the first amended petition. Respondent is directed to file an answer to ground 4 of petitioner's habeas petition within 60 days from the date of this order. Petitioner's reply, if any, shall be filed and served within 30 days after service of the answer. This case is referred back to the assigned magistrate judge for further proceedings. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD JOSEPH PEREIRA,

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Petitioner,

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No. 2:14-cv-0530 KJM AC 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 in

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accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 24, 2017, 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 ten days. ECF No. 38. Petitioner has filed

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objections to the findings and recommendations. ECF No. 39.
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 reviewed the entire file, the court

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finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 24, 2017 (ECF No. 38), are adopted
in full;

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2. Respondent’s motion to dismiss (ECF No. 34) is granted in part and Grounds 1-3 and

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5-8 in petitioner’s first amended petition for writ of habeas corpus are dismissed as unexhausted;

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3. The case shall proceed on Ground 4 of the first amended petition;

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4. Respondent is directed to file an answer to Ground 4 of petitioner’s habeas petition

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within sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall

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be accompanied by all transcripts and other documents relevant to the issues presented in the

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petition. See Rule 5, 28 U.S.C. foll. § 2254;

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5. Petitioner’s reply, if any, shall be filed and served within thirty days after service of the
answer; and
6. This case is referred back to the assigned magistrate judge for further proceedings.
DATED: March 23, 2017.

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UNITED STATES DISTRICT JUDGE

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