(HC) Ast v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MORGAN RAYMOND AST, No. 2:21-cv-01195-KJM-JDP (HC) 12 Petitioner, 13 v. ORDER 14 PATRICK COVELLO, 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 December 1, 2021, the magistrate judge filed findings and recommendations, which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within fourteen days. Plaintiff did not file 23 objections to 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 . . . .”). ] The court has reviewed the file and adopts the Magistrate Judge’s recommendation to 2 || dismiss the claim for ineffective assistance of counsel. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Respondent’s motion to dismiss, ECF No. 13, is granted and petitioner’s ineffective 5 || assistance of counsel claim is dismissed as unexhausted. This action will proceed only on 6 || petitioner’s claims for instructional error and failure to stay his convictions; 7 2. This matter is referred back to the assigned magistrate judge for all further pretrial 8 | proceedings. 9 || DATED: October 11, 2022. 10 1] CHIEF ED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28