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