Haff v. Cate
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/7/11 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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MATTHEW DAVID HAFF,
Petitioner,
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vs.
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No. CIV S-10-1184 JAM EFB P
MATTHEW CATE,
Respondent.
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FINDINGS AND RECOMMENDATIONS
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Petitioner is a former state prisoner without counsel seeking a writ of habeas corpus. See
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28 U.S.C. § 2254. On February 1, 2011, the court ordered petitioner to file, within 30 days, an
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opposition or statement of no opposition to respondent’s December 2, 2010 motion to dismiss.
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Dckt. No. 17. The court admonished petitioner that failure to do so would result in a
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recommendation that this action be dismissed without prejudice.
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On March 7, 2011 petitioner filed a motion for an extension of time to oppose the motion
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to dismiss, due to his release on parole and subsequent move. Dckt. No. 19. Petitioner informed
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the court that he expected to complete the opposition early, but sought a 60-day extension in
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order to ensure “thoroughness.” Id. The motion was granted on March 15, 2011, providing
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petitioner 60 days from service of the order to file the opposition. Dckt. No. 20.
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More than eighty days have now elapsed since the court granted petitioner’s request for
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an extension of time. Petitioner has not filed the opposition, sought additional time, or otherwise
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responded to the court’s order. Accordingly, the undersigned will recommend that this action be
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dismissed for failure to prosecute. L.R. 110; Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.
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1995) (affirming district court’s dismissal pursuant to local rule due to plaintiff’s failure to file
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an opposition to defendants’ motion to dismiss); see Fed. R. Civ. P. 41(b).
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Accordingly, it is hereby RECOMMENDED that this action be dismissed without
prejudice.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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In his objections, petitioner may address whether a certificate of appealability should issue in the
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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it
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enters a final order adverse to the applicant).
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DATED: June 7, 2011.
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