Thao v. Muniz

Filing 18

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 10/12/2017 RECOMMENDING that this action be dismissed with prejudice for failure to prosecute. Objections due within fourteen days after being served with these findings and recommendations. Referred to Judge Kimberly J. Mueller. (Hunt, G)

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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 TOUA DELYNN THAO, 12 Petitioner, 13 14 No. 2:16-cv-2477 KJM AC P v. FINDINGS AND RECOMMENDATIONS WILLIAM MUNIZ, Warden, 15 Respondent. 16 Petitioner is a state prisoner at Salinas Valley State Prison proceeding pro se and in forma 17 18 pauperis with a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On March 19 10, 2017, respondent moved to dismiss the petition on the grounds that it was filed beyond the 20 one-year statute of limitations and contains an unexhausted claim. See ECF No. 14. Petitioner 21 did not file an opposition or statement of non-opposition to the motion, which was due within 22 thirty days. See ECF No. 9 at 2, ¶ 4. By order filed April 25, 2017, the court accorded petitioner an additional twenty-one days 23 24 to respond to the motion to dismiss, and informed petitioner that failure to timely comply would 25 “result in a recommendation that this action be dismissed without prejudice for failure to 26 prosecute, pursuant to Federal Rule of Civil Procedure 41(b).” ECF No. 17 at 1-2. Petitioner did 27 not respond to the court’s order or otherwise communicate with the court. 28 //// 1 1 Accordingly, IT IS HEREBY RECOMMENDED that: 2 1. This action be dismissed without prejudice for failure to prosecute, see Fed. R. Civ. P. 3 41(b); and 4 2. The Clerk of Court be directed to close this case. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendations.” Failure to file objections within the specified time may waive 10 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: October 12, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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