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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL JOSEPH VALINE, 12 Petitioner, 13 14 15 v. No. 2:16-cv-01027-MCE-EFB P ORDER WILLIAM L. MUNIZ, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On February 14, 2017, the magistrate judge filed findings and recommendations herein 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. Petitioner has filed 23 objections to the findings and recommendations. These objections do not substantively address 24 the magistrate judge’s recommendation. Instead, they request a certificate of appealability in the 25 event this petition is ultimately denied. This request is untimely. Petitioner may address whether 26 a certificate should issue once the court rules on his petition. 27 28 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 1 1 court finds the findings and recommendations to be supported by the record and by proper 2 analysis. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed February 14, 2017, are adopted in full. 5 2. Respondent’s motion to dismiss (ECF No. 13) is denied as moot. 6 3. The motion to stay (ECF No. 2), which was predicated on this petition being “mixed,” 7 8 9 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 10 sufficiently corroborated; (4) that his trial counsel was constitutionally ineffective in 11 failing to object before and during the trial to the unlawful search and seizure of 12 petitioner’s cell phone text records; and (5) that the Sacramento County Sheriff 13 unlawfully obtained a statement from Justine Valine by interrogating him while he 14 was not in his right state of mind. All other claims contained in the petition are dismissed without 15 prejudice. 16 17 IT IS SO ORDERED. Dated: March 23, 2017 18 19 20 21 22 23 24 25 26 27 28 2

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