Opinion
1:05-CV-0684 REC LJO HC, Order Adopting Findings and Recommendation [Doc. #9].
October 17, 2005
ORDER DISMISSING CLAIMS ORDER REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On July 15, 2005, the Magistrate Judge issued a Findings and Recommendation that recommended Ground One, in part, and Three be DISMISSED for failure to state a cognizable federal claim. The Magistrate Judge further recommended that Grounds One, Three, Four and Five be DISMISSED for failure to exhaust state remedies. The Findings and Recommendation was served on all parties and contained notice that any objections were to be filed within thirty (30) days of the date of service of the order.
On September 26, 2005, Petitioner filed objections to the Findings and Recommendation. In his objections, Petitioner concedes that Grounds One and Three are unexhausted because they were not raised before the California Supreme Court; however, he contends that Grounds Four and Five were exhausted. Unfortunately, Petitioner does not provide a copy of the relevant state court petition; thus, the Court cannot make a determination regarding Petitioner's claim of exhaustion. The Court will reserve judgment and allow Respondent to file a motion to dismiss on this basis should she choose to do so. In addition, Petitioner does not contest that Ground One, in substantial part, and Ground Three fail to raise a cognizable federal claim.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of the case. Having carefully reviewed the entire file and having considered the objections, the Court concludes that the Magistrate Judge's Findings and Recommendation is supported by the record and proper analysis. With the exception of reserving judgment with respect to Grounds Four and Five, there is no need to modify the Findings and Recommendations based on the points raised in the objections.
Accordingly, IT IS HEREBY ORDERED that:
1. The Findings and Recommendation issued July 15, 2005, is ADOPTED IN FULL;
2. Grounds One and Three are DISMISSED from the petition; and
3. The matter is REFERRED BACK to the Magistrate Judge for further proceedings.
IT IS SO ORDERED.