-SKO (HC) Martinez v. Hartley, No. 1:2011cv00215 - Document 11 (E.D. Cal. 2011)

Court Description: ORDER Re: 10 FINDINGS AND RECOMMENDATIONS; ORDER DISMISSING Without Leave to Amend Petitioner's Claims in the First Amended Petition That Are Based on State Law and Concerning the State Post-Conviction Process; Findings and Recommendations to Refer the Remaining Claims in the First Amended Petition Back to the Magistrate Judge, signed by Senior Judge Oliver W. Wanger on 9/12/2011. The matter is REFERRED back to the Magistrate Judge for further proceedings. (Marrujo, C)

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-SKO (HC) Martinez v. Hartley Doc. 11 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ISAAC MARTINEZ, 11 Petitioner, 12 13 14 v. JAMES D. HARTLEY, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00215-OWW-SKO-HC ORDER RE: FINDINGS AND RECOMMENDATIONS (DOC. 10) ORDER DISMISSING WITHOUT LEAVE TO AMEND PETITIONER’S CLAIMS IN THE FIRST AMENDED PETITION THAT ARE BASED ON STATE LAW AND CONCERNING THE STATE POST-CONVICTION PROCESS (DOC. 9) FINDINGS AND RECOMMENDATIONS TO REFER THE REMAINING CLAIMS IN THE FIRST AMENDED PETITION BACK TO THE MAGISTRATE JUDGE 17 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. The matter was referred to the Magistrate 22 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 23 304. 24 On August 1, 2011, the Magistrate Judge filed findings and 25 recommendations to dismiss without leave to amend Petitioner’s 26 claims based on state law and his claim concerning delay in the 27 post-conviction processes of the state court. It was further 28 1 Dockets.Justia.com 1 recommended that upon dismissal of the claims that are not 2 cognizable, the proceeding be referred back to the Magistrate 3 Judge for further proceedings. 4 The findings and recommendations were served on all parties 5 on the same date and informed the parties that objections could 6 be filed within thirty days. 7 passed, no objections have been filed. 8 9 Although over thirty days have In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this Court has conducted a de novo review of the case. 10 Having carefully reviewed the entire file, the Court finds that 11 the report and recommendations are supported by the record and 12 proper analysis. 13 Accordingly, it is ORDERED that: 14 1) The Findings and Recommendations filed on August 1, 2011, 15 16 are ADOPTED IN FULL; and 2) Petitioner’s claims based on state law and his claim 17 concerning delay in the post-conviction processes of the state 18 court, set forth in the first amended petition, are DISMISSED 19 without leave to amend; and 20 3) The matter is REFERRED back to the Magistrate Judge for further proceedings.IT IS SO ORDERED. 21 22 Dated: September 12, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2

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