Thomas Resendez v. John Sutton

Filing 20

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Andrew J. Guilford for Report and Recommendation (Issued) 19 . The Court accepts and adopts the Magistrate Judge's Report and Recommendation. IT IS ORDERED that Judgment be entered denying and dismissing the Petition without prejudice. (Attachments: # 1 Report and Recommendation) (dml) (Attachment 1 replaced on 6/28/2017) (dml).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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THOMAS RESENDEZ,

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Petitioner,
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v.
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JOHN SUTTON, WARDEN,
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Respondent.
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______________________________)

NO. CV 16-8611-AG(E)

REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

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This Report and Recommendation is submitted to the Honorable

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Andrew J. Guilford, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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Petitioner filed a “Petition for Writ of Habeas Corpus by a

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Person in State Custody” on November 18, 2016.

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Answer on February 13, 2017.

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Answer within the allotted time.

Respondent filed an

Petitioner failed to file a Reply to the

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On March 10, 2017, the Magistrate Judge ordered that Petitioner

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file a Reply to the Answer within twenty (20) days of March 10, 2017.

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The Magistrate Judge cautioned Petitioner that failure to do so “may

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result in the denial and dismissal of the Petition.”

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Petitioner again failed to file a Reply to the Answer within the

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allotted time.

Nevertheless,

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DISCUSSION

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The Petition should be denied and dismissed without prejudice.

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Petitioner has failed to file a timely Reply, despite a court order

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that he do so.

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and expeditious disposition of cases by dismissing actions for failure

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to prosecute.

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Court has considered the factors recited in Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-62 (9th Cir.), cert. denied, 506 U.S. 915 (1992), and

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has concluded that dismissal without prejudice is appropriate.

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particular, any less drastic alternative would not be effective under

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the circumstances of this case.

The Court has inherent power to achieve the orderly

Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962).

The

In

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RECOMMENDATION

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For all of the foregoing reasons, IT IS RECOMMENDED that the

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Court issue an Order: (1) accepting and adopting this Report and

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Recommendation; and (2) directing that Judgment be entered denying and

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dismissing the Petition without prejudice.

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DATED: April 5, 2017.

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/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report