Mortensen v. Butte County Superior Court
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 09/19/18 RECOMMENDING that the 1 petition be DISMISSED for lack of prosecution. Respondents pending 13 motion to dismiss the petition as premature be DENIED as moot; and this court DECLINE to issue the certificate of appealability. Motion 13 referred to Judge Morrison C. England Jr. 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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STEVEN LEE MORTENSEN,
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No. 2:16-cv-2187 MCE AC P
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
BUTTE COUNTY SUPERIOR COURT,
et al.,
Respondents.
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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate
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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. For the reasons stated herein,
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the court will recommend that the petition be dismissed for lack of prosecution.
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PROCEDURAL HISTORY
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Petitioner filed the instant petition in this court on September 14, 2016. ECF No. 1. On
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September 13, 2017, respondent Seibel filed a motion to dismiss on the grounds that the petition
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was premature given that petitioner’s direct appeal was still pending in the California Court of
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Appeal. See ECF No. 13. Petitioner did not oppose the motion.
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On February 5, 2018, the docket was updated to indicate a change of address for
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petitioner. The new address appeared to be a private one; not one affiliated with the California
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Department of Corrections and Rehabilitation.
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On September 4, 2018, the undersigned ordered petitioner to file a response to respondent
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Seibel’s motion to dismiss within ten days and to update the court on the status of his state habeas
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proceedings. See ECF No. 16. At that time, petitioner was warned that failure to comply with
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the order might result in the dismissal of the action for failure to prosecute. See id.
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On September 14, 2018, the court’s September 4, 2018 order was returned as
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“undeliverable, attempted – not known.” Despite its return, petitioner was properly served. See
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E.D. Cal., L.R. 182(f) (2009) (stating service of documents at prior address of party is fully
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effective). For these reasons, the court will recommend that this action be dismissed for lack of
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prosecution.
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II.
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CERTIFICATE OF APPEALABILITY
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. Therefore, no certificate of appealability should issue.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. The petition (ECF No. 1) be DISMISSED for lack of prosecution;
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2. Respondent’s pending motion to dismiss the petition as premature (ECF No. 13) be
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DENIED as moot; and
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3. This court DECLINE to issue the certificate of appealability referenced in 28 U.S.C. §
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2253.
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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, petitioner may file written
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objections with the court. Such a document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: September 19, 2018
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