Riley v. Stainer

Filing 15

ORDER (1) Adopting in Part and Denying in Part 12 Magistrate Judge's Report and Recommendation and (2) Dismissing Petition without Prejudice. The petition is dismissed without prejudice for the reasons set out in the R&R. The Court finds no basis for a certificate of appealability. Signed by Judge Dana M. Sabraw on 3/24/2017.(All non-registered users served via U.S. Mail Service)(aef)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN E. RILEY,, Case No.: 15cv2938 DMS (KSC) Petitioner, 12 13 v. 14 ORDER (1) ADOPTING IN PART AND DENYING IN PART MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AND (2) DISMISSING PETITION WITHOUT PREJUDICE M. STAINER, Warden, 15 Respondent. 16 17 18 On December 28, 2015, Petitioner Steven E. Riley (“Petitioner”), a state prisoner 19 proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 On November 30, 2016, Magistrate Judge Karen Crawford issued a Report and 21 Recommendation (“R&R”) recommending that the Court deny the petition. Petitioner filed 22 objections to the R&R on February 10, 2017. Respondent did not file a reply to those 23 objections, and the time for doing so has expired. 24 This Court, having reviewed de novo the Magistrate Judge’s R&R and Petitioner’s 25 objections thereto, agrees with Magistrate Judge that this case does not fall within the core 26 of habeas corpus. In light of that finding, the Magistrate Judge recommended that the 27 petition be denied, but the Court finds it more appropriate to dismiss the petition without 28 1 15cv2938 DMS (KSC) 1 prejudice.1 Accordingly, the petition is dismissed without prejudice for the reasons set out 2 in the R&R. The Court finds no basis for a certificate of appealability. 3 IT IS SO ORDERED. 4 Dated: March 24, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court notes Petitioner has another case pending in this Court, Riley v. Kernan, 16cv405 MMA (JMA), alleging claims under 42 U.S.C. § 1983. 2 15cv2938 DMS (KSC)

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