Hernandez v. Sherman

Filing 20

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 05/10/17 recommending that the petition be dismissed with prejudice for failure to obey an order of the court. No certificate of appealability shall be issued; and the clerk of the court shall close this filed. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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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 RAUL ALVAREZ HERNANDEZ, Petitioner, 12 13 14 No. 2:16-cv-02472 MCE GGH v. FINDINGS AND RECOMMENDATIONS STU SHERMAN, Warden, Respondent. 15 16 17 Petitioner is proceeding pro se in this habeas corpus action filed on March 10, 2017. ECF 18 No. 1. On December 29, 2016 the magistrate judge issued an Order to Show Cause [“OSC”] 19 requiring petitioner to explain why his failure to oppose respondent’s December 12, 2016 Motion 20 to Dismiss should not be deemed a waiver of any opposition to the granting of the motion, or he 21 could, in the alternative, file a opposition within that thirty day period. In that Order petitioner 22 was cautioned that failure to respond or to file an opposition would result in a recommendation 23 that this action be dismissed. Petitioner has filed nothing with the court. 24 25 Finally, the court has reviewed the motion and finds that it has merit standing alone and would therefore be granted in light of the failure to respond to the OSC. 26 In light of the foregoing, the court makes the following recommendations: 27 1. The petition be dismissed with prejudice for failure to obey an Order of the Court; 28 2. No Certificate of Appealability shall be issued; and 1 1 3. 2 These Findings and Recommendation are submitted to the United States District Judge 3 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 4 days after being served with these findings and recommendations, any party may file written 5 objections with the court. Such a document should be captioned “Objections to Magistrate 6 Judge's Findings and Recommendations.” Failure to file objections within the specified time may 7 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th 8 Cir.1991). 9 Dated: May 10, 2017 The Clerk of the Court shall close this file. 10 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 Hernandez.2472.F&R.Order 18 19 20 21 22 23 24 25 26 27 28 2

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