Cavness-Bey v. Davis
Filing
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ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/7/16 ORDERING that petitioner's motion for certificate of appealability (ECF No. 12 ) is DENIED as moot; and it is RECOMMENDED that this action be dismissed without prejudice. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DONALD E. CAVNESS-BEY,
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Petitioner,
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No. 2:15-cv-2090 WBS KJN P
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
RONALD DAVIS,
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Respondent.
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By order filed October 19, 2015, petitioner’s habeas application was dismissed and thirty
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days leave to file an amended application was granted. The thirty day period has now expired,
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and petitioner has not responded to the court’s order.
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On November 9, 2015, petitioner filed a notice of interlocutory appeal, and a motion for
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certificate of appealability, both concerning the October 19, 2015 order. However, on February
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23, 2016, the United States Court of Appeals for the Ninth Circuit dismissed petitioner’s appeal.
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Thus, petitioner’s motion for certificate of appealability is moot.
Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for certificate of
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appealability (ECF No. 12) is denied as moot; and
IT IS RECOMMENDED that this action be dismissed without prejudice. See Local Rule
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110; Fed. R. Civ. P. 41(b).
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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.” If petitioner files objections,
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he shall also address whether a certificate of appealability should issue and, if so, why and as to
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which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the
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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after
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service of the objections. The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951
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F.2d 1153 (9th Cir. 1991).
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Dated: April 7, 2016
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cavn2090.fta.hab
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