Molina v. Ponce
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 11/04/15 ORDERING the clerk of the court randomly assign a District Judge to this action. U.S. District Judge John A. Mendez randomly assigned to this action. Al so, RECOMMENDING that the petition 1 be dismissed without prejudice for failure to prosecute pursuant to FRCP 41(b). The district court decline to issue a certificate of appealability. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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LUIS M. MOLINA,
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No. 2:15-cv-01275 GGH
Petitioner,
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v.
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PONCE,
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ORDER & FINDINGS AND
RECOMMENDATIONS
Respondent.
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Petitioner, a federal prisoner proceeding pro se, has filed an application for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2251. Petitioner argues that respondent violated his
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constitutional rights to due process and equal protection when respondent denied his request for a
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year off his sentence once he completed the Bureau of Prison’s (BOP) Residential Drug Abuse
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Program (RDAP). ECF No. 1 at 3, 6. On September 10, 2015, the court dismissed the petition
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with thirty (30) days to file an amended petition, finding that petitioner was not entitled to relief
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because he did not state a claim for violation of his federal or Constitutional rights. ECF No. 7.
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Specifically, the court found that there is no Constitutional right to a lesser sentence because of
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one’s participation in RDAP. In addition, the court found that to the extent petitioner was
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attempting to assert a violation of the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–
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06, that claim was meritless. The court warned petitioner that a failure to file a timely amended
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petition, or comply with any other part of the order, would result in the dismissal of his case. Id.
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at 6. Petitioner has yet to file an amended petition.
Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must
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issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A
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certificate of appealability may issue only “if the applicant has made a substantial showing of the
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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these
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findings and recommendations, a substantial showing of the denial of a constitutional right has
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not been made in this case.
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In accordance with the foregoing, THE COURT HEREBY ORDERS that the Clerk of the
Court assign a district judge to this case.
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THE COURT ALSO HEREBY RECOMMENDS that:
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1. The petition, ECF No. 1, be DISMISSED without prejudice for failure to prosecute
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under Federal Rule of Civil Procedure 41(b); and
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2. The District Court decline to issue a certificate of appealability.
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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 reply to the objections
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shall be served and filed within fourteen days after service of the objections. Failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 4, 2015
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/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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/moli1275.dism.woprej
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