(HC) Valencia v. Gipson, No. 1:2013cv01864 - Document 20 (E.D. Cal. 2014)

Court Description: ORDER Adopting FINDINGS AND RECOMMENDATIONS Recommending Dismissal Of Petitioner's Second Ground For Relief (Doc. 19 ), signed by District Judge Lawrence J. O'Neill on 10/27/2014. The second ground of the petition is hereby DISMISSED. The Magistrate Judge is directed to issue an order requiring respondent to file a response, an order setting briefing schedule, and an order directing the Clerk of Court to serve documents on the Attorney General.(Fahrney, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 LUIS ALBERTO VALENCIA, 11 Case No. 1:13-cv-01864-LJO-SMS HC Petitioner, 12 v. 13 CONNIE GIPSON, Warden, 14 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF PETITIONER'S SECOND GROUND FOR RELIEF Respondent. 15 (Doc. 19) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 19 20 21 pursuant to 28 U.S.C. § 2254. Petitioner first filed a petition on November 18, 2013.1 On January 9, 2014, the Court struck Petitioner's unexhausted claim and granted Petitioner's motion for a stay and abeyance. 22 Following the California Supreme Court's denial of his pending state petition, Petitioner 23 24 filed an amended petition on July 31, 2014. He asserted three grounds for relief: (1) denial of his 25 right to a speedy trial in violation of the Sixth Amendment to the U.S. Constitution; (2) admission 26 of the uncorroborated testimony of a co-defendant in violation of California state law and the Sixth 27 28 1 Petitioner also filed an earlier petition that was dismissed for failure to exhaust state remedies. See Valencia v. Gipson, 1:12-cv-01783-LJO-GSA HC. 1 1 2 3 and Fourteenth Amendments to the U.S. Constitution; and (3) administration of flawed and incomplete jury instructions in violation of the Fourteenth Amendment to the U.S. Constitution. The matter was referred to United States Magistrate Judge Sandra M. Snyder pursuant to 28 4 U.S.C. § 636(b) and Local Rules 72-302 and 72-304. On August 20, 2014, after screening the 5 petition, the Magistrate Judge filed findings and recommendations recommending that the Court 6 dismiss the second ground since it did not state a legally cognizable claim. 7 The Clerk of Court served the Petitioner with the findings and recommendations, which 8 9 provided that he could object within thirty days. The order mailed to Petitioner was returned to the 10 Clerk as undeliverable. Petitioner has neither filed objections nor provided the Court with a new 11 address. 12 13 14 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has considered the record as a whole. Following careful review, the Court finds the findings and recommendations to be supported by the factual record and proper legal analysis. 15 16 17 Accordingly, the Court hereby ORDERS that the findings and recommendations, filed August 20, 2014, be adopted in full. The second ground of the petition is hereby DISMISSED. 18 The Magistrate Judge is directed to issue an order requiring respondent to file a response, an order 19 setting briefing schedule, and an order directing the Clerk of Court to serve documents on the 20 Attorney General. 21 IT IS SO ORDERED. 22 23 Dated: /s/ Lawrence J. O’Neill October 27, 2014 UNITED STATES DISTRICT JUDGE 24 25 26 27 28 2

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