Yeh v. John Doe Warden

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 9/16/13 RECOMMENDING that this action be dismissed. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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YOW MING YEH,

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Petitioner,

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No. 2:13-cv-262-TLN-EFB P

v.

FINDINGS AND RECOMMENDATIONS

JOHN DOE WARDEN,

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Respondent.

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Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254.
On July 3, 2013, respondent moved to dismiss the petition on the ground that the

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petition is untimely and that petitioner failed to exhaust available state judicial remedies. On

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August 15, 2013, the court informed petitioner of the requirements for filing an opposition to any

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motion to dismiss. That order gave petitioner 21 days to file an opposition or statement of non-

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opposition and warned him that failure to do so would result in a recommendation that this action

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be dismissed.
The 21 days have passed and petitioner has not filed an opposition or a statement of no

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opposition nor otherwise responded to the August 15, 2013 order.

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Accordingly, it is RECOMMENDED that this action be dismissed. Fed. R. Civ. P. 41(b);
Rule 12, Rules Governing § 2254 Cases.

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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). In

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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: September 16, 2013.

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