Wanton v. Virga et al

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATION 14 . The Court hereby adopts the Report and Recommendation in its entirety and dismisses without prejudice claim 5 of the petition. Signed by Judge Michael M. Anello on 2/14/2014.(All non-registered users served via U.S. Mail Service)(vam)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 GREGORY WANTON, 11 12 13 14 15 vs. TIM VIRGA, et al., CASE NO. 13cv1240-MMA (RBB) Petitioner, ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [Doc. No. 14] Respondents. Petitioner Gregory Wanton, a state prisoner proceeding pro se, has filed a 16 petition for writ of habeas corpus pursuant to Title 28 of the United States Code, 17 section 2254, challenging his May 4, 2009 conviction for, inter alia, first degree 18 murder, and his sentence of an indeterminate term of seventy-five years to life in 19 prison with a consecutive determinate term of nine years. See Doc. No. 1. United 20 States Magistrate Judge Ruben B. Brooks previously determined that the petition 21 contains both exhausted and unexhausted claims. See Doc. No. 11. Judge Brooks 22 advised Petitioner of his options to avoid dismissal of his “mixed” petition. Id. On 23 January 8, 2014, Respondents filed a motion seeking clarification of the instant 24 proceedings. See Doc. No. 13. Judge Brooks granted the motion and has issued a 25 well-reasoned Report recommending dismissal without prejudice of Petitioner’s 26 unexhausted claim 5 so that Petitioner may proceed as to claims 1 through 4 of his 27 petition. See Doc. No. 14. Neither party has objected to Judge Brook’s Report and 28 Recommendation. -1- 13cv1240 1 After reviewing the Report and Recommendation, the Court finds that Judge 2 Brooks’ conclusions are thorough, well-reasoned, and supported by the record. In 3 light of the foregoing, and the fact that neither party filed objections, the Court 4 hereby ADOPTS the Report and Recommendation in its entirety and DISMISSES 5 WITHOUT PREJUDICE claim 5 of the petition. 6 IT IS SO ORDERED. 7 DATED: February 14, 2014 8 9 Hon. Michael M. Anello United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- 13cv1240

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