(HC) Marshall v. Foss ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUDOLPH MARSHALL, No. 2:19-cv-1142 KJM KJN P 12 Petitioner, 13 v. ORDER 14 TAMMY FOSS, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On March 11, 2020, 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, 25 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge’s conclusions of law are reviewed 26 de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[D]eterminations of law 27 by the magistrate judge are reviewed de novo by both the district court and [the appellate] court 28 ///// 1 . . . .”). Having reviewed the file, the court finds the findings and recommendations to be 2 supported by the record and by the proper analysis. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed March 11, 2020, are adopted in full. 5 2. Respondent’s motion to dismiss (ECF No. 11) is granted on the grounds that the 6 instant petition is successive. 7 3. This action is dismissed without prejudice. 8 4. The court declines to issue the certificate of appealability referenced in 28 U.S.C. 9 § 2253. 10 DATED: September 30, 2020. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /mars1142.801.hc