(HC) Ayon v. Hartley, No. 1:2009cv00843 - Document 18 (E.D. Cal. 2010)

Court Description: ORDER ADOPTING 16 FINDINGS AND RECOMMENDATIONS; ORDER DENYING 13 Respondent's Motion to Dismiss; ORDER DENYING 14 Petitioner's Motion to Amend the Pleadings; and ORDER REFERRING ACTION Back to Magistrate Judge, signed by District Judge Lawrence J. O'Neill on 10/22/2010. (Jessen, A)
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(HC) Ayon v. Hartley Doc. 18 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 JOSE AYON, Petitioner, 10 11 1:09-cv-00843-LJO-MJS (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATION v. 12 JAMES D. HARTLEY, Warden, ORDER DENYING RESPONDENT’S MOTION TO DISMISS AND PETITIONER’S MOTION TO AMEND THE PLEADINGS 13 Respondent. 14 ORDER REFERRING ACTION BACK TO MAGISTRATE JUDGE / [Docs. 13, 14 and 16] 15 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 18 On June 24, 2010, Respondent filed a motion to dismiss for failure to exhaust state 19 judicial remedies. (Mot. to Dismiss, ECF No. 13.) In response, Petitioner filed a motion to 20 amend his petition for Writ of Habeas Corpus on July 15, 2010. (Mot. to Amend, ECF No. 21 14.) On September 7, 2010, the Magistrate Judge issued a Findings and Recommendation 22 that the Motion to Dismiss and Motion to Amend be DENIED. (Findings and 23 Recommendation, ECF No. 16.) This Findings and Recommendation was served on all 24 parties with notice that any objections were to be filed within thirty (30) days of the date of 25 service of the order. Respondent filed objections on September 30, 2010. (Objections, 26 ECF No. 17.) 27 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has 28 conducted a de novo review of the case. Having carefully reviewed the entire file, including -1Dockets.Justia.com 1 the objections to the Findings and Recommendation, the Court concludes that the 2 Magistrate Judge's Findings and Recommendation is supported by the record and proper 3 analysis. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Respondent’s motion to dismiss for failure to exhaust judicial remedies is DENIED; 6 7 2. Petitioner’s motion to amend the pleadings is DENIED; and 8 3. This action is REFERRED to the assigned Magistrate Judge for further proceedings. 9 10 11 12 IT IS SO ORDERED. 13 Dated: 66h44d October 22, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-