-SMS (HC) Colbert v. Schulteis, No. 1:2010cv01532 - Document 17 (E.D. Cal. 2011)

Court Description: ORDER Re: FINDINGS AND RECOMMENDATIONS Re: Respondent's Motion To Dismiss The Petition (Docs. 15 , 14 , 1 , 8 ) ORDER Granting Respondent's Motion To Dismiss The Petition (Doc. 14 ), ORDER Dismissing Petition Without Prejudice For Failure To Exhaust State Court Rememdies, ORDER Declining To Issue A Certificate Of Appeal And Directing The Clerk To Close The Case, signed by District Judge Lawrence J. O'Neill on 7/18/2011.CASE CLOSED. (Fahrney, E)

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-SMS (HC) Colbert v. Schulteis Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 GEORGE K. COLBERT, 11 Petitioner, 12 v. 13 L. L. SCHULTEIS, 14 Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01532–LJO-SMS-HC ORDER RE: FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 15, 14, 1, 8) ORDER GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 14) ORDER DISMISSING PETITION WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES 17 ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEAL AND DIRECTING THE CLERK TO CLOSE THE CASE 18 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. The matter was referred to the Magistrate 23 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 24 304. 25 On May 31, 2011, the Magistrate Judge filed findings and 26 recommendations to deny Respondent’s motion to dismiss the 27 petition on the ground of untimeliness, grant Respondent’s motion 28 1 Dockets.Justia.com 1 to dismiss the petition for failure to exhaust state court 2 remedies, dismiss the petition without prejudice for failure to 3 exhaust state court remedies, decline to issue a certificate of 4 appealability, and direct the clerk to close the case. 5 The findings and recommendations were served on all parties 6 on the same date, and they advised all parties that objections to 7 the findings and recommendations could be filed within thirty 8 (30) days, and replies within fourteen (14) days after the filing 9 of any objections. 10 On June 29, 2011, Respondent filed timely objections. 11 Although the time for filing a reply has passed, no reply has 12 been filed. 13 In accordance with the provisions of 28 U.S.C. § 636 14 (b)(1)(C), this Court has conducted a de novo review of the case. 15 The undersigned has carefully reviewed the entire file and has 16 considered the objections; the undersigned has determined there 17 is no need to modify the findings and recommendations based on 18 the points raised in the objections. 19 findings and recommendations are supported by the record and 20 proper analysis. The Court finds that the 21 Accordingly, it is ORDERED that: 22 1) The Findings and Recommendations filed on May 31, 2011, 23 are ADOPTED IN FULL; and 24 2) Respondent’s motion to dismiss the petition for 25 Petitioner’s failure to exhaust state court remedies is GRANTED; 26 and 27 28 3) The petition is DISMISSED without prejudice for failure to exhaust state court remedies; and 2 1 2 4) The Court DECLINES to issue a certificate of appealability; and 3 5) The Clerk is DIRECTED to close the case. 4 5 IT IS SO ORDERED. 6 Dated: b9ed48 July 18, 2011 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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