(HC) Davis v. Haviland, No. 2:2010cv01029 - Document 36 (E.D. Cal. 2013)

Court Description: ORDER ADOPTING 35 FINDINGS AND RECOMMENDATIONS signed by Judge Kimberly J. Mueller on 8/8/13. The 32 Motion to Dismiss is DENIED; respondent shall file and serve an answer to the petition within 30 days; traverse due 30 days thereafter. (Manzer, C)
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(HC) Davis v. Haviland Doc. 36 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DONALD DAVIS, 12 13 14 15 No. 2:10-cv-01029 KJM DAD P Petitioner, v. ORDER JAMES HAVILAND, Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an amended application for a writ 18 of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 20, 2013, the magistrate judge filed findings and recommendations, which were 21 served on all parties and which contained notice to all parties that any objections to the findings 22 and recommendations were to be filed within fourteen days. Neither party has filed objections to 23 the findings and recommendations. 24 The court presumes that any findings of fact are correct. See Orand v. United States, 602 25 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. 26 See Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir. 1983). Having carefully 27 reviewed the file, the court finds the findings and recommendations to be supported by the record 28 and by the proper analysis. 1 Dockets.Justia.com 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed June 20, 2013, are adopted in full; 3 2. Respondent's January 23, 2013 motion to dismiss (ECF No. 32) is denied; and 4 3. Respondent shall file and serve an answer within thirty days from the service of this 5 order; petitioner shall file and serve his traverse thirty days thereafter. 6 DATED: August 8, 2013. 7 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2