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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL SARMIENTO, 12 13 14 15 No. 2:13-cv-1338 MCE AC P Petitioner, v. FINDINGS & RECOMMENDATIONS RICK HILL, Respondent. 16 17 By order filed May 5, 2017, the undersigned found that petitioner had failed to show cause 18 why his petition should not be dismissed for lack of habeas jurisdiction and he was given thirty 19 days to file an amended complaint and convert this action to a civil rights action under 42 U.S.C. 20 § 1983. ECF No. 29. After the thirty days had passed and petitioner failed to file an amended 21 complaint or otherwise responded to the order, the undersigned issued findings and 22 recommendations that recommended that the petition be dismissed for lack of jurisdiction. ECF 23 No. 30. After the findings and recommendations were issued, petitioner filed an untimely motion 24 for extension of time. ECF No. 31. Since petitioner demonstrated an intent to continue 25 prosecuting his claim, the findings and recommendations were withdrawn and petitioner was 26 given until July 19, 2017, to file an amended complaint. ECF No. 32. He was warned that any 27 future motions for extension of time were to be filed before the deadline passed and that if the 28 motion was late he had to explain why the motion was late. Id. Petitioner’s July 19, 2017 1 1 deadline has now passed and petitioner has once again failed to amend the complaint or otherwise 2 respond to the court’s order. Accordingly, the undersigned will recommend that the petition be 3 dismissed for lack of habeas jurisdiction as set forth in the May 5, 2017 order. 4 IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas 5 corpus be dismissed for lack of jurisdiction for the reasons set forth in the court’s May 5, 2017 6 order (ECF No. 29). 7 These findings and recommendations are submitted to the United States District Judge 8 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 9 after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 12 objections shall be filed and served within fourteen days after service of the objections. The 13 parties are advised that failure to file objections within the specified time may waive the right to 14 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: September 8, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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