Martinez v. Hartley

Full title: ISAAC MARTINEZ, Petitioner, v. JAMES D. HARTLEY, Respondent.

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Sep 12, 2011

1:11-cv-00215-OWW-SKO-HC (E.D. Cal. Sep. 12, 2011)

Opinion

1:11-cv-00215-OWW-SKO-HC

09-12-2011

ISAAC MARTINEZ, Petitioner, v. JAMES D. HARTLEY, Respondent.

Oliver W. Wanger

ORDER RE: FINDINGS AND RECOMMENDATIONS (DOC. 10)

ORDER DISMISSING WITHOUT LEAVE TO AMEND PETITIONER'S CLAIMS IN THE

FIRST AMENDED PETITION THAT ARE BASED ON STATE LAW AND CONCERNING THE STATE POST-CONVICTION PROCESS (DOC. 9)

FINDINGS AND RECOMMENDATIONS TO REFER THE REMAINING CLAIMS IN

THE FIRST AMENDED PETITION BACK TO THE MAGISTRATE JUDGE

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.

On August 1, 2011, the Magistrate Judge filed findings and recommendations to dismiss without leave to amend Petitioner's claims based on state law and his claim concerning delay in the post-conviction processes of the state court. It was further recommended that upon dismissal of the claims that are not cognizable, the proceeding be referred back to the Magistrate Judge for further proceedings.

The findings and recommendations were served on all parties on the same date and informed the parties that objections could be filed within thirty days. Although over thirty days have passed, no objections have been filed.

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, the Court finds that the report and recommendations are supported by the record and proper analysis.

Accordingly, it is ORDERED that:

1) The Findings and Recommendations filed on August 1, 2011, are ADOPTED IN FULL; and

2) Petitioner's claims based on state law and his claim concerning delay in the post-conviction processes of the state court, set forth in the first amended petition, are DISMISSED without leave to amend; and

3) The matter is REFERRED back to the Magistrate Judge for further proceedings. IT IS SO ORDERED.

Oliver W. Wanger

UNITED STATES DISTRICT JUDGE