Opinion
No. CIV S-07-2263 FCD GGH P.
October 2, 2008
ORDER
Petitioner, a state prisoner proceeding pro se, 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 July 31, 2008, 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. 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 July 31, 2008, are adopted in full; and
2. Respondent's motion to dismiss the amended petition as a mixed petition, filed on 2/04/08 (# 11), is construed as a motion to strike as unexhausted from claim 1, the claim of a violation of petitioner's rights under the Sixth Amendment by the admission of preliminary hearing testimony at trial when the complaining victim/witness was found to have been unavailable absent the trial court's having threatened incarceration, is granted as to the subclaim/arguments contending that petitioner did not have the opportunity to cross-examine the complaining victim about her hypnosis sessions at the preliminary hearing and that the procedures set forth in Cal. Evid. Code § 795 were not followed at the trial, and the motion is denied as to the argument in support of claim 1 that petitioner's right to confront and cross-examine witnesses was violated because jurors did not see and hear the complaining victim testify.