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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 YOW MING YEH, 12 Petitioner, 13 14 No. 2:13-cv-262-TLN-EFB P v. FINDINGS AND RECOMMENDATIONS JOHN DOE WARDEN, 15 Respondent. 16 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. On July 3, 2013, respondent moved to dismiss the petition on the ground that the 19 20 petition is untimely and that petitioner failed to exhaust available state judicial remedies. On 21 August 15, 2013, the court informed petitioner of the requirements for filing an opposition to any 22 motion to dismiss. That order gave petitioner 21 days to file an opposition or statement of non- 23 opposition and warned him that failure to do so would result in a recommendation that this action 24 be dismissed. The 21 days have passed and petitioner has not filed an opposition or a statement of no 25 26 opposition nor otherwise responded to the August 15, 2013 order. 27 ///// 28 ///// 1 1 2 Accordingly, it is RECOMMENDED that this action be dismissed. Fed. R. Civ. P. 41(b); Rule 12, Rules Governing § 2254 Cases. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 within the specified time may waive the right to appeal the District Court’s order. Turner v. 9 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 10 his objections petitioner may address whether a certificate of appealability should issue in the 11 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 12 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 13 enters a final order adverse to the applicant). 14 Dated: September 16, 2013. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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