Myles v. Rackley
Filing
17
ORDER signed by District Judge Troy L. Nunley on 12/9/16 ORDERING the findings and recommendations filed 10/27/16, are adopted in full; Respondent's motion to dismiss (ECF No. 14 ) is granted; Claims 1 and 4 are dismissed without prejudic e to refiling in a separate action; Claims 2 and 3 are dismissed with prejudice for failure to state a claim; this action is referred back to the Magistrate Judge to proceed on Claim 5; and the Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. (Becknal, R)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10
ALFRED MYLES,
11
No. 2:16-cv-0278 TLN CKD P
Petitioner,
12
v.
13
R. J. RACKLEY,
14
ORDER
Respondent.
15
16
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
17
corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate
18
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
19
On October 27, 2016, the Magistrate Judge filed findings and recommendations herein
20
which were served on petitioner on November 9, 2016, and which contained notice to petitioner
21
that any objections to the findings and recommendations were to be filed within fourteen days.
22
Petitioner has not filed objections to the findings and recommendations.
23
The court presumes that any findings of fact are correct. See Orand v. United States, 602
24
F.2d 207, 208 (9th Cir. 1979). The Magistrate Judge’s conclusions of law are reviewed de novo.
25
See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed
26
the file, the Court finds the findings and recommendations to be supported by the record and by
27
the Magistrate Judge’s analysis.
28
Accordingly, IT IS HEREBY ORDERED that:
1
1
1. The findings and recommendations filed October 27, 2016, are adopted in full;
2
2. Respondent’s motion to dismiss (ECF No. 14) is granted;
3
3. Claims 1 and 4 are dismissed without prejudice to refiling in a separate action;
4
4. Claims 2 and 3 are dismissed with prejudice for failure to state a claim;
5
5. This action is referred back to the Magistrate Judge to proceed on Claim 5; and
6
6. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. §
7
2253.
8
9
10
Dated: December 9, 2016
11
12
13
Troy L. Nunley
United States District Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?