(HC) Sanchez v. Spearmen, No. 1:2017cv00723 - Document 23 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this Petition be Summarily Dismissed with Prejudice re 1 Petition for Writ of Habeas Corpus ;referred to Judge Ishii; ORDER VACATING 21 FINDINGS AND RECOMMENDATIONS, signed by Magistrate Judge Jennifer L. Thurston on 05/02/2018.Objections to F&R due 21-Day Deadline (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALEJANDRO SANCHEZ, 12 13 14 15 Case No. 1:17-cv-00723-AWI-JLT-HC Petitioner, ORDER VACATING FINDINGS AND RECOMMENDATION OF APRIL 3, 2018 v. FINDINGS AND RECOMMENDATION TO SUMMARILY DISMISS PETITION FOR WRIT OF HABEAS CORPUS M. E. SPEARMAN, Respondent. [21-DAY OBJECTION DEADLINE] 16 17 On May 15, 2017, Petitioner filed a federal petition for writ of habeas corpus. On 18 September 7, 2017, the Court issued an order summarily dismissing the petition because the 19 claims clearly lacked merit. (Doc. 14.) Judgment was entered on the same date and the case was 20 terminated. (Doc. 15.) 21 Petitioner then appealed to the Ninth Circuit Court of Appeals. On March 30, 2018, the 22 Ninth Circuit, citing the recent decision in Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 23 2017), determined that all parties, including unserved defendants, had not consented to the 24 jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c)(1). (Doc. 20.) The Ninth 25 Circuit vacated the judgment and remanded the case to the District Court. (Doc. 20.) Formal 26 mandate of the Court issued on April 23, 2018. (Doc. 22.) 27 The Court has reviewed the petition on remand. For the same reasons stated in the order 28 of September 7, 2017, the Court will recommend the petition be SUMMARILY DISMISSED 1 1 with prejudice. ORDER 2 The Findings and Recommendation issued April 3, 2018, is hereby VACATED.1 (Doc. 3 4 21.) RECOMMENDATION 5 The Court RECOMMENDS that the petition be SUMMARILY DISMISSED with 6 7 prejudice. This Findings and Recommendation is submitted to the United States District Court 8 9 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 10 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 11 California. Within twenty-one days after being served with a copy, Petitioner may file written 12 objections with the Court. Such a document should be captioned “Objections to Magistrate 13 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s 14 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections 15 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 16 Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 IT IS SO ORDERED. Dated: 19 May 2, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 1 The Findings and Recommendation recommended that the petition be dismissed for lack of jurisdiction pursuant to the Court’s order of August 23, 2017; however, Petitioner named a proper respondent on August 28, 2017, and the order was vacated. (Docs. 10, 12, 13.) 2

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