Opinion
No. CIV S-98-1333 DFL KJM P.
February 9, 2006
ORDER
Petitioner is a California prisoner proceeding with counsel with an application for a writ of habeas corpus under 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 September 2, 2005, 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. Petitioner has filed objections to the findings and recommendations.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis with the exception of the finding that claim 4 was unexhausted.
In his objections, petitioner notes that claim 4 was raised in his state habeas petition filed on February 27, 2002. Also, respondent has conceded that all claims have been exhausted. However, the court concurs with the magistrate judge's finding that the failure of the trial court to hold an evidentiary hearing, when entertaining petitioner's post-trial motion to strike certain prior convictions, at best states a violation of state procedural rules and not a violation of the United States Constitution.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed September 2, 2005, are adopted in full with the exception above as noted; and
2. Petitioner's application for a writ of habeas corpus is denied.