(HC) Tyes v. Sherman, No. 2:2015cv02655 - Document 24 (E.D. Cal. 2018)

Court Description: ORDER signed by District Judge John A. Mendez on 11/5/2018 ADOPTING the 22 findings and recommendations. The respondent's 12 Motion to Dismiss is GRANTED. The petition is DISMISSED with prejudice. No certificate of appealability shall be issued. The Clerk of the Court shall close this case. CASE CLOSED. (Zignago, K.)

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(HC) Tyes v. Sherman Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARTHUR EUGENE TYES, 12 Petitioner, 13 14 v. No. 2:15-cv-02655-KJM-GGH ORDER STUART SHERMAN, 15 Respondent. 16 17 Petitioner filed his petition for writ of habeas corpus pro se on December 23, 2015. ECF 18 No. 1. The magistrate judge to whom the matter was assigned dismissed the petition as 19 successive on February 1, 2016, ECF No. 5, and judgment was entered the following day. ECF 20 No. 6. On July 14, 2017 the Ninth Circuit Court of Appeals granted petitioner’s application to 21 file a second or successive petition, ECF No. 7, and the case was reopened in this court pursuant 22 to an order entered on July 24, 2017. ECF No. 10. 23 On September 21, 2017 the respondent moved to dismiss the petition. ECF No. 12. On 24 September 4, 2018 the magistrate judge filed and served Findings and Recommendations in 25 which he granted the parties twenty-one (21) days to file objection warning that the fail to do so 26 could result in a waiver of their right to appeal this court’s Order. ECF No. 22. No objections 27 have been filed. 28 1 Dockets.Justia.com 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 2 this court has conducted a de novo review of this case. Having reviewed the file and the 3 magistrate judge’s findings and recommendations the court ADOPTS the findings and 4 recommendations in full. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Respondent’s Motion to dismiss is GRANTED; 7 2. The petition for writ of habeas corpus is dismissed with prejudice; 8 3. No Certificate of Appealability shall be issued; 9 4. The Clerk of the Court shall close this case. 10 IT IS SO ORDERED. 11 12 13 14 DATED: November 5, 2018 /s/ John A. Mendez____________ _____ UNITED STATES DISTRICT COURT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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