Sarmiento v. Hill
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 9/8/2017 RECOMMENDING petitioner's 1 application for writ of habeas corpus be dismissed for lack of jurisdiction for the reasons set forth in the court's 5/5/2017 order. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Yin, K)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:13-cv-1338 MCE AC P
FINDINGS & RECOMMENDATIONS
By order filed May 5, 2017, the undersigned found that petitioner had failed to show cause
why his petition should not be dismissed for lack of habeas jurisdiction and he was given thirty
days to file an amended complaint and convert this action to a civil rights action under 42 U.S.C.
§ 1983. ECF No. 29. After the thirty days had passed and petitioner failed to file an amended
complaint or otherwise responded to the order, the undersigned issued findings and
recommendations that recommended that the petition be dismissed for lack of jurisdiction. ECF
No. 30. After the findings and recommendations were issued, petitioner filed an untimely motion
for extension of time. ECF No. 31. Since petitioner demonstrated an intent to continue
prosecuting his claim, the findings and recommendations were withdrawn and petitioner was
given until July 19, 2017, to file an amended complaint. ECF No. 32. He was warned that any
future motions for extension of time were to be filed before the deadline passed and that if the
motion was late he had to explain why the motion was late. Id. Petitioner’s July 19, 2017
deadline has now passed and petitioner has once again failed to amend the complaint or otherwise
respond to the court’s order. Accordingly, the undersigned will recommend that the petition be
dismissed for lack of habeas jurisdiction as set forth in the May 5, 2017 order.
IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas
corpus be dismissed for lack of jurisdiction for the reasons set forth in the court’s May 5, 2017
order (ECF No. 29).
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
after being served with these findings and recommendations, any party may file written
objections with the court and serve a copy on all parties. Such a document should be captioned
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
objections shall be filed and served within fourteen days after service of the objections. The
parties are advised that failure to file objections within the specified time may waive the right to
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED: September 8, 2017
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