(HC) Myles v. Rackley, No. 2:2016cv00278 - Document 17 (E.D. Cal. 2016)
Court Description: ORDER signed by District Judge Troy L. Nunley on 12/9/16 ORDERING the findings and recommendations filed 10/27/16, are adopted in full; Respondent's motion to dismiss (ECF No. 14 ) is granted; Claims 1 and 4 are dismissed without prejudic e to refiling in a separate action; Claims 2 and 3 are dismissed with prejudice for failure to state a claim; this action is referred back to the Magistrate Judge to proceed on Claim 5; and the Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253. (Becknal, R)
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(HC) Myles v. Rackley Doc. 17 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ALFRED MYLES, 11 No. 2:16-cv-0278 TLN CKD P Petitioner, 12 v. 13 R. J. RACKLEY, 14 ORDER Respondent. 15 16 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 18 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On October 27, 2016, the Magistrate Judge filed findings and recommendations herein 20 which were served on petitioner on November 9, 2016, and which contained notice to petitioner 21 that any objections to the findings and recommendations were to be filed within fourteen days. 22 Petitioner has not filed objections to the findings and recommendations. 23 The court presumes that any findings of fact are correct. See Orand v. United States, 602 24 F.2d 207, 208 (9th Cir. 1979). The Magistrate Judge’s conclusions of law are reviewed de novo. 25 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having reviewed 26 the file, the Court finds the findings and recommendations to be supported by the record and by 27 the Magistrate Judge’s analysis. 28 Accordingly, IT IS HEREBY ORDERED that: 1 Dockets.Justia.com 1 1. The findings and recommendations filed October 27, 2016, are adopted in full; 2 2. Respondent’s motion to dismiss (ECF No. 14) is granted; 3 3. Claims 1 and 4 are dismissed without prejudice to refiling in a separate action; 4 4. Claims 2 and 3 are dismissed with prejudice for failure to state a claim; 5 5. This action is referred back to the Magistrate Judge to proceed on Claim 5; and 6 6. The Court declines to issue the certificate of appealability referenced in 28 U.S.C. § 7 2253. 8 9 10 Dated: December 9, 2016 11 12 13 Troy L. Nunley United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2
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