Opinion
No. CIV S-97-0775 FCD JFM P.
February 25, 2008
ORDER
Petitioner, a state prisoner proceeding through counsel, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On November 2, 2007, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Counsel for petitioner has been granted three extensions of time to file objections; petitioner's objections were due on or before February 13, 2008. That date has now passed, and neither party has filed objections to the findings and recommendations.
The court has reviewed the file and finds the findings and recommendations to be supported by the record and by the magistrate judge's analysis. Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed November 1, 2007, are adopted in full.
2. Petitioner's fifth claim for relief is granted. Petitioner's conviction for violation of California Penal Code Section 451(b) is vacated.
3. This matter is remanded to state court with direction that the portion of petitioner's sentence reflecting a violation California Penal Code Section 451(b) be stricken and petitioner be re-sentenced as provided in California Penal Code Section 451(c).
4. In all other respects, petitioner's application for a writ of habeas corpus is denied.