Rivera v. Peery

Filing 56

ORDER signed by Chief District Judge Kimberly J. Mueller on 9/7/2020 ADOPTING 55 Findings and Recommendations in full; GRANTING 45 Motion to Dismiss; DISMISSING all claims appearing in 41 Second Amended Petition except part 1 of claim 2 and claim 4; and DIRECTING respondent to file and answer concerning the remaining claims within 30 days. (Coll, A)

Case 2:16-cv-00856-KJM-CKD Document 56 Filed 09/08/20 Page 1 of 2
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT RIVERA,

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Petitioner,

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No. 2:16-cv-0856 KJM CKD P

v.

ORDER

S. PEERY,

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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 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 January 29, 2020, 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 fourteen days. Neither party has filed

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objections to the findings and recommendations.
The court presumes that any findings of fact are correct. See Orand v. United States,

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602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed

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de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law

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by the magistrate judge are reviewed de novo by both the district court and [the appellate] court

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Case 2:16-cv-00856-KJM-CKD Document 56 Filed 09/08/20 Page 2 of 2
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. . . .”). Having reviewed the file, the court finds the findings and recommendations to be

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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 January 29, 2020, are adopted in full;

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2. Respondent’s motion to dismiss (ECF No. 45) is granted;

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3. All claims appearing in petitioner’s second amended petition for writ of habeas corpus

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except part 1 of claim 2 and claim 4 are dismissed; and
4. Respondent shall file an answer concerning the remaining claims within 30 days.
DATED: September 7, 2020.

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