(HC) Thomas Earl Evans v. James Tilton, No. 1:2007cv00678 - Document 18 (E.D. Cal. 2008)

Court Description: ORDER ADOPTING FINDINGS and RECOMMENDATIONS 13 , GRANTING Petitioner's Request to Withdraw Unexhausted Claims, DENYING Motion to Dismiss 11 and Referring Matter Back to Magistrate Judge signed by Judge Anthony W. Ishii on 2/2/2008. (Esteves, C)

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(HC) Thomas Earl Evans v. James Tilton Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 THOMAS EARL EVANS, 10 11 CV F 07-00678 AWI DLB HC Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, GRANTING PETITIONER’S REQUEST TO WITHDRAW UNEXHAUSTED CLAIMS, DENYING MOTION TO DISMISS, AND REFERRING MATTER BACK TO MAGISTRATE JUDGE v. 12 JAMES TILTON, 13 Respondent. 14 [Docs. 11, 13, 17] / 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 On September 11, 2007, the Magistrate Judge issued Findings and Recommendations 18 recommending that Respondent’s motion to dismiss the petition as containing both exhausted 19 and unexhausted claims in violation of 28 U.S.C. § 2254(b)(1). In lieu of dismissal, without 20 prejudice, the Court granted Petitioner the opportunity to withdraw the unexhausted claims and 21 proceed only with the exhausted claims. 22 On December 20, 2007, Petitioner filed a request to dismiss the unexhausted claims and 23 proceed with the exhausted claims. (Court Doc. 17.) As such, Respondent’s motion to dismiss 24 the petition is now moot and shall be denied on that ground. 25 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted 26 a de novo review of the case. Having carefully reviewed the entire file, the Court finds that the 27 Findings and Recommendation is supported by the record and proper analysis. 28 1 Dockets.Justia.com 1 Accordingly, it is HEREBY ORDERED that: 2 1. 3 The Findings and Recommendations issued September 11, 2007, is ADOPTED in FULL; 4 2. Petitioner’s request to withdraw the unexhausted claims is GRANTED; 5 3. Respondent’s motion to dismiss the petition, without prejudice, is DENIED as 6 7 MOOT; and, 4. The matter is referred back to the Magistrate Judge for further proceedings. 8 9 10 IT IS SO ORDERED. Dated: 0m8i78 February 2, 2008 /s/ Anthony W. Ishii UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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