Message
×
loading..

(HC) Herrera v. Matteson ( 2022 )


Menu:
  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO E. HERRERA, ) Case No.: 1:19-cv-1150 JLT HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS GRANTNG 13 v. ) RESPONDENT’S MOTION TO DISMISS ) GROUNDS TWO AND THREE FROM THE FIRST 14 GISELLE MATTESON, ) AMENDED PETITION ) 15 Respondent. ) (Docs. 24, 29) ) 16 ) 17 Armando E. Herrera is a state prisoner proceeding pro se with an amended petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 20.) Petitioner identifies the following grounds 19 for relief in his Amended Petition: (1) insufficiency of the evidence; (2) trial court error for refusing to 20 bifurcate the gang allegations; and (3) due process violations stemming from the trial court destruction 21 of records necessary for appellate review. (See Doc. 20 at 7-15.) Respondent moved to dismiss 22 grounds two and three as untimely. (Doc. 24.) 23 On November 16, 2021, the magistrate judge issued Findings and Recommendations. (Doc. 29.) 24 The magistrate judge found grounds two and three were untimely and did not relate back to any 25 grounds raised in the initial Petition. (Id. at 5-6.) Therefore, the magistrate judge recommended 26 Respondent’s motion to dismiss be granted and that the matter proceed only upon ground one of the 27 Amended Petition related to insufficiency of the evidence. (Id. at 7.) 28 The Findings and Recommendations were served upon all parties and contained notice that any 1 || objections were to be filed within fourteen days after service. (Doc. 29 at 7.) In addition, the parties 2 || were “advised that failure to file objections within the specified time may result in the waiver of right 3 on appeal.” (d., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014); Baxter v. Sulliva 4 || 923 F.2d 1391, 1394 (9th Cir. 1991).) Petitioner was granted an extension of time to respond to the 5 || Findings and Recommendations on January 26, 2022. (Doc. 34.) On March 9, 2022, Petitioner 6 || responded that he “accepts the Courts findings.” (Doc. 35 at 1.) 7 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Britt v. Simi Valley United 8 || School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court conducted a de novo review of this case. 9 || Having carefully reviewed the entire matter, the Court finds the Findings and Recommendations are 10 || supported by the record and proper analysis. Based upon the foregoing, the Court ORDERS: 11 1. The Findings and Recommendations issued on November 16, 2021 (Doc. 29) are 12 ADOPTED in full. 13 2. Respondent’s motion to dismiss (Doc. 24) is GRANTED. 14 3. Grounds two and three in the amended petition for writ of habeas corpus (Doc. 20) are 15 DISMISSED without leave to amend; and 16 4. The matter SHALL proceed only upon count one in the Amended Petition. 17 18 ||IT IS SO ORDERED. 19 || Dated: _March 11, 2022 ( LAW ph L. wary 20 TED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28

Document Info

Docket Number: 1:19-cv-01150

Filed Date: 3/14/2022

Precedential Status: Precedential

Modified Date: 6/20/2024