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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ESTEBAN HERNANDEZ,

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No. 1:15-cv-01829-DAD-SKO

Petitioner,
v.
DHS/ICE and LORRETA LYNCH,
Respondents.

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ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, AND DENYING
PETITIONER’S MOTION FOR
RECONSIDERATION, WITHOUT
PREJUDICE, FOR FAILURE TO
PROSECUTE
(Doc. Nos. 39, 41)

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On November 22, 2016, this court dismissed petitioner Esteban Hernandez’s petition for

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writ of habeas corpus brought pursuant to 28 U.S.C. § 2241. (Doc. No. 43.) On December 8,

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2016, petitioner, who was detained by the Department of Homeland Security (“DHS”),

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subsequently moved for reconsideration of the court’s order dismissing his petition. (Doc. No.

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46.) The matter was referred to the assigned magistrate judge pursuant to 28 U.S.C. § 636(b)(1)

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and Local Rules 302 and 304.

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On April 13, 2017, the magistrate judge issued findings and recommendations,

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recommending that the court deny petitioner’s motion for reconsideration. (Doc. No. 47.) The

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Clerk of Court attempted to serve those findings and recommendations on petitioner by mail, but
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the order was returned by the U.S. Postal Service marked as “Undeliverable, Not in Custody.”

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On July 21, 2017, after petitioner failed to file a notice of change of address within the time

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period provided by Local Rule 183, the magistrate judge filed a second set of findings and

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recommendations recommending that petitioner’s motion for reconsideration be dismissed, with

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prejudice, due to petitioner’s failure to prosecute and that the court decline to issue a certificate of

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appealability. (Doc. No. 48.) The July 21, 2017 findings and recommendations provided that

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petitioner could file objections thereto within thirty days. (Id.) However, the service copy of

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those findings and recommendations were also returned to the court by the U.S. Postal Service

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marked as “Undeliverable, Return to Sender; Not Here.” In any event, petitioner has not filed

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objections to the pending findings and recommendation or otherwise notified the court of a

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change of address.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), having carefully reviewed

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the entire file de novo, the court finds that the findings and recommendations are supported by the

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record. The court, however, declines to adopt the findings and recommendations insofar as they

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suggest denial of petitioner’s motion for reconsideration with prejudice. See, e.g., Local Rule 183

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(stating that failure to notify the court of a current address may result in dismissal without

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prejudice).

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Accordingly,

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1. The July 21, 2017 findings and recommendations (Doc. No. 48) are adopted,

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consistent with the reasoning set forth in this order;

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2. Petitioner’s motion for reconsideration (Doc. No. 46) is denied without prejudice; and1

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3. The court declines to issue a certificate of appealability.

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IT IS SO ORDERED.

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Dated:

September 12, 2017
UNITED STATES DISTRICT JUDGE

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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.

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