Hernandez v. DHS/ICE, et al.

Filing 49

ORDER Adopting 48 Findings and Recommendations, Denying Petitioner's Motion for Reconsideration 46 , Without Prejudice, for Failure to Prosecute, signed by District Judge Dale A. Drozd on 9/12/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ESTEBAN HERNANDEZ, 12 13 14 15 No. 1:15-cv-01829-DAD-SKO Petitioner, v. DHS/ICE and LORRETA LYNCH, Respondents. 16 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, AND DENYING PETITIONER’S MOTION FOR RECONSIDERATION, WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE (Doc. Nos. 39, 41) 17 18 19 20 On November 22, 2016, this court dismissed petitioner Esteban Hernandez’s petition for 21 writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. (Doc. No. 43.) On December 8, 22 2016, petitioner, who was detained by the Department of Homeland Security (“DHS”), 23 subsequently moved for reconsideration of the court’s order dismissing his petition. (Doc. No. 24 46.) The matter was referred to the assigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1) 25 and Local Rules 302 and 304. 26 On April 13, 2017, the magistrate judge issued findings and recommendations, 27 recommending that the court deny petitioner’s motion for reconsideration. (Doc. No. 47.) The 28 Clerk of Court attempted to serve those findings and recommendations on petitioner by mail, but 1 1 the order was returned by the U.S. Postal Service marked as “Undeliverable, Not in Custody.” 2 On July 21, 2017, after petitioner failed to file a notice of change of address within the time 3 period provided by Local Rule 183, the magistrate judge filed a second set of findings and 4 recommendations recommending that petitioner’s motion for reconsideration be dismissed, with 5 prejudice, due to petitioner’s failure to prosecute and that the court decline to issue a certificate of 6 appealability. (Doc. No. 48.) The July 21, 2017 findings and recommendations provided that 7 petitioner could file objections thereto within thirty days. (Id.) However, the service copy of 8 those findings and recommendations were also returned to the court by the U.S. Postal Service 9 marked as “Undeliverable, Return to Sender; Not Here.” In any event, petitioner has not filed 10 objections to the pending findings and recommendation or otherwise notified the court of a 11 change of address. 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), having carefully reviewed 13 the entire file de novo, the court finds that the findings and recommendations are supported by the 14 record. The court, however, declines to adopt the findings and recommendations insofar as they 15 suggest denial of petitioner’s motion for reconsideration with prejudice. See, e.g., Local Rule 183 16 (stating that failure to notify the court of a current address may result in dismissal without 17 prejudice). 18 Accordingly, 19 1. The July 21, 2017 findings and recommendations (Doc. No. 48) are adopted, 20 consistent with the reasoning set forth in this order; 21 2. Petitioner’s motion for reconsideration (Doc. No. 46) is denied without prejudice; and1 22 3. The court declines to issue a certificate of appealability. 23 IT IS SO ORDERED. 24 Dated: September 12, 2017 UNITED STATES DISTRICT JUDGE 25 26 27 1 The Clerk of the Court is accordingly directed to administratively terminate the April 13, 2017 findings and recommendations (Doc. No. 47), as they have been rendered moot by this order. 28 2

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