(HC) McClintock v. Jones

Filing 19

ORDER signed by Chief District Judge Troy L. Nunley on 1/7/2025 ADOPTING 18 Findings and Recommendations in full; GRANTING 11 Motion to Dismiss; DENYING as moot 16 Motion to Stay; DISMISSING 1 Application for Writ of Habeas Corpus; DECLINING to issue COA. CASE CLOSED. (Deputy Clerk KEZ)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN SCOTT MCCLINTOCK,

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Petitioner,

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v.

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GENA JONES,

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No. 2:24-cv-01599-TLN-AC

ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, filed an 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 November 15, 2024, 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 twenty one days. Neither party filed

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objections to the findings and recommendations.

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The Court presumes that any findings of fact are correct. See Orand v. United States, 602

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

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See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). The Court has

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reviewed the file and finds the findings and recommendations to be supported by the record and

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by the magistrate judge’s analysis.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations (ECF No. 18) are ADOPTED IN FULL.

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2. Respondent’s motion to dismiss (ECF No. 11) is GRANTED.

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3. Petitioner’s motion for a stay (ECF No. 16) is DENIED as moot.

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4. Petitioner’s application for a writ of habeas corpus (ECF No. 1) is DISMISSED

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without prejudice to refiling as a 42 U.S.C. § 1983 action.

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5. The Court declines to issue the certificate of appealability referenced in 28 U.S.C.

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§ 2253.

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Date: January 7, 2025

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___________________________________
TROY L. NUNLEY
CHIEF UNITED STATES DISTRICT JUDGE

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