Morales v. Hedgpeth

Filing 16

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/19/12 RECOMMENDING that 13 Motion to Dismiss. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 21 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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OSCAR MORALES,

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Petitioner,
vs.
ANTHONY HEDGPETH, et al.,
Respondents

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No. 2: 12-cv-0544 LKK KJN P

FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. On May 7, 2012, respondent filed a motion to

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dismiss. Petitioner did not file an opposition. Accordingly, on June 20, 2012 the court granted

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petitioner fourteen days to file his opposition and show cause for his failure to file an opposition.

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The June 20, 2012 order warned petitioner that his failure to file an opposition would be deemed

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a waiver of opposition.

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Fourteen days passed and petitioner did not respond to the June 20, 2012 order.

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Accordingly, IT IS HEREBY RECOMMENDED that respondent’s May 7, 2012

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motion to dismiss (Dkt. No. 13) be granted.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty1

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one days 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.” If petitioner files

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objections, he shall also address whether a certificate of appealability should issue and, if so, why

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and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if

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the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

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service of the objections. The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: July 19, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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mor544.dis

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