(HC) Lopez Diaz v. People of the State of Calfornia

Filing 22

ORDER signed by Chief District Judge Kimberly J. Mueller on 1/17/2023 ADOPTING 20 Findings and Recommendations in full. Respondent's third claim is DISMISSED and this matter is referred back to the assigned magistrate judge for all further pretrial proceedings.(Perdue, C.)

Case 2:22-cv-00252-KJM-JDP Document 22 Filed 01/17/23 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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JAVIER LOPEZ DIAZ,

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Petitioner,

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Case No. 2:22-cv-00252-KJM-JDP (HC)

v.

ORDER

PATRICK COVELLO,

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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 November 28, 2022, 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 2:22-cv-00252-KJM-JDP Document 22 Filed 01/17/23 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 November 28, 2022, are adopted in full;

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2. Respondent’s third claim, identified above as the trial court’s failure to give sua sponte

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instructions on lesser included offenses, is dismissed; and
3. This matter is referred back to the assigned magistrate judge for all further pretrial

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proceedings.

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DATED: January 17, 2023

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