Valine v. Muniz

Filing 21

ORDER signed by District Judge Morrison C. England, Jr. on 3/23/2017 ADOPTING IN FULL 19 Findings and Recommendations; DENYING 13 Motion to Dismiss as moot; DENYING 2 Motion to Stay as moot; ORDERING that this action proceed on the petitioner's first, fourth, and fifth claims; DISMISSING all other claims without prejudice. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL JOSEPH VALINE,

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Petitioner,

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v.

No. 2:16-cv-01027-MCE-EFB P

ORDER

WILLIAM L. MUNIZ,
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 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 February 14, 2017, the magistrate judge filed findings and recommendations herein

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

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the findings and recommendations were to be filed within fourteen days. Petitioner has filed

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objections to the findings and recommendations. These objections do not substantively address

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the magistrate judge’s recommendation. Instead, they request a certificate of appealability in the

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event this petition is ultimately denied. This request is untimely. Petitioner may address whether

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a certificate should issue once the court rules on his petition.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
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court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed February 14, 2017, are adopted in full.

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2. Respondent’s motion to dismiss (ECF No. 13) is denied as moot.

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3. The motion to stay (ECF No. 2), which was predicated on this petition being “mixed,”

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is denied as moot.
4. This action proceeds only on petitioner’s first, fourth, and fifth claims. These are,
specifically, that: (1) he was convicted by the testimony of an accomplice that was not

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sufficiently corroborated; (4) that his trial counsel was constitutionally ineffective in

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failing to object before and during the trial to the unlawful search and seizure of

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petitioner’s cell phone text records; and (5) that the Sacramento County Sheriff

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unlawfully obtained a statement from Justine Valine by interrogating him while he

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was not in his right state of mind. All other claims contained in the petition are dismissed without

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prejudice.

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IT IS SO ORDERED.
Dated: March 23, 2017

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