Hunt v. Asuncion

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 5/10/16 RECOMMENDING that respondent's motion to dismiss, filed February 9, 2016 (ECF No. 7 ), be granted; this case be closed; and the District Court decline to issue a certificate of appealability. Referred to Judge Troy L. Nunley; 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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ROBERT M. HUNT,

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No. 2:15cv-2636 TLN GGH P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

DEBBIE ASUNCION,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.

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On March 10, 2016, petitioner was ordered to show cause, within thirty days, why

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respondent’s February 9, 2016 motion to dismiss should not be granted. At that time, petitioner

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was warned that failure to file an opposition would result in a recommendation that this action be

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dismissed. The thirty day period has now expired, and petitioner has not shown cause or

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otherwise responded to the court’s order. In addition, the court has reviewed the motion to

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dismiss as duplicative of another habeas action pending in this court, Hunt v. Soto, 2:16-cv-0075

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EFB. The court finds that on the face of it, the motion has merit. Petitioner’s previously filed

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habeas action does indeed raise the same claims and this action appears to be a duplicate of the

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first action.

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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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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Respondent’s motion to dismiss, filed February 9, 2016 (ECF No. 7), be granted;

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2. This case be closed; and

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3. 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 Title 28 U.S.C. § 636(b)(l). Within fourteen

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(14) days 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 seven (7) days after service of the objections. The parties are

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

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

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Dated: May 10, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/Hunt2636.fr

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