McFarland v. State of California

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/6/2017 RECOMMENDING that this action be dismissed. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DOUGLAS SCOTT McFARLAND,

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Petitioner,

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No. 2:16-cv-2568-JAM-EFB P

v.

FINDINGS AND RECOMMENDATIONS

STATE OF CALIFORNIA,

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Respondent.

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Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On May 5, 2017, respondent filed a motion to dismiss on the

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ground that the sole claim in the petition is unexhausted. On June 6, 2017, the court informed

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petitioner of the requirements for filing an opposition to any motion to dismiss. That order gave

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petitioner 21 days to file an opposition or statement of non-opposition and warned petitioner that

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failure to do so would result in a recommendation that this action be dismissed.1 ECF No. 22.

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The 21 days have passed and petitioner has not filed an opposition or a statement of no

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opposition nor otherwise responded to the June 6, 2017, order.

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/////

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The court notes that this action was previously dismissed after petitioner failed to pay the
filing fee or seek leave to proceed in forma pauperis. ECF No. 6. The court later granted
petitioner relief from judgment and reopened the case. ECF No. 11.
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Accordingly, it is RECOMMENDED that this action be dismissed. Fed. R. Civ. P. 41(b);
Rule 12, Rules Governing § 2254 Cases; E.D. Cal. Local Rule 110.

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In

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his objections petitioner may address whether a certificate of appealability should issue in the

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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

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enters a final order adverse to the applicant).

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Dated: July 6, 2017.

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