Speight v. Davey

Filing 27

ORDER adopting 23 FINDINGS AND RECOMMENDATIONS and granting in part and denying in part 16 Motion to Dismiss signed by District Judge Troy L. Nunley on 2/27/17. (Kaminski, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

KRISTOPHER DESHAWN SPEIGHT,

12

No. 2:15-cv-00209-TLN-DB

Petitioner,

13

v.

14

DAVE DAVEY,

15

ORDER

Respondent.

16
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

17
18

corpus pursuant to 28 U.S.C. § 2254. (Petition, ECF No. 1.) The matter was referred to a United

19

States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On January 9, 2017, the Magistrate Judge filed findings and recommendations herein

20
21

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

22

the findings and recommendations were to be filed within fourteen days. (ECF No. 23.)

23

Respondent filed objections to the findings and recommendations. (ECF No. 26.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

24
25

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

26

Court finds the findings and recommendations to be supported by the record and by proper

27

analysis.

28

/////
1

1

Accordingly, IT IS HEREBY ORDERED that:

2

1. The findings and recommendations filed January 9, 2017, (ECF No. 23) are

3
4
5

ADOPTED in full;
2. Respondent’s motion to dismiss (ECF No. 16) is GRANTED in part and DENIED in
part;

6

a. Respondent’s motion to dismiss the Petition on lack of jurisdiction is DENIED;

7

b. Respondent’s motion to dismiss Petitioner’s claims regarding petitioner’s 2010

8

sentence is GRANTED and the Court dismisses the allegations that Petitioner

9

raises in Claim 7 of the Petition that Petitioner’s trial counsel was ineffective for

10

failing to object to Petitioner’s 25-year to life sentence on the grounds that the

11

sentence violates the Eighth Amendment; and

12

3. This action to remain open.

13
14

Dated: February 27, 2017

15
16

Troy L. Nunley
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28
2