Sarmiento v. Hill

Filing 33

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)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SAMUEL SARMIENTO,

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No. 2:13-cv-1338 MCE AC P

Petitioner,
v.

FINDINGS & RECOMMENDATIONS

RICK HILL,
Respondent.

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By order filed May 5, 2017, the undersigned found that petitioner had failed to show cause

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why his petition should not be dismissed for lack of habeas jurisdiction and he was given thirty

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days to file an amended complaint and convert this action to a civil rights action under 42 U.S.C.

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§ 1983. ECF No. 29. After the thirty days had passed and petitioner failed to file an amended

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complaint or otherwise responded to the order, the undersigned issued findings and

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recommendations that recommended that the petition be dismissed for lack of jurisdiction. ECF

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No. 30. After the findings and recommendations were issued, petitioner filed an untimely motion

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for extension of time. ECF No. 31. Since petitioner demonstrated an intent to continue

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prosecuting his claim, the findings and recommendations were withdrawn and petitioner was

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given until July 19, 2017, to file an amended complaint. ECF No. 32. He was warned that any

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future motions for extension of time were to be filed before the deadline passed and that if the

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motion was late he had to explain why the motion was late. Id. Petitioner’s July 19, 2017
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deadline has now passed and petitioner has once again failed to amend the complaint or otherwise

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respond to the court’s order. Accordingly, the undersigned will recommend that the petition be

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dismissed for lack of habeas jurisdiction as set forth in the May 5, 2017 order.

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IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas

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corpus be dismissed for lack of jurisdiction for the reasons set forth in the court’s May 5, 2017

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order (ECF No. 29).

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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.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 8, 2017

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