Cummings v. People Of California

Filing 9

ORDER signed by Magistrate Judge Edmund F. Brennan on 05/31/17 ordering this action is dismissed and the court declines to issue a certificate of appealability. CASE CLOSED (Plummer, M)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

NICHOLAS MARTIN CUMMINGS,

11
12
13
14

No. 2:16-cv-2572-EFB P

Petitioner,
v.

ORDER

PEOPLE OF CALIFORNIA,
Respondent.

15
16

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

17

28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 302 pursuant to 28

18

U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C.

19

§ 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

20

On April 19, 2017, the court reviewed the petition pursuant to Rule 4 of the Rules

21

Governing Section 2254 Cases. The court found that petitioner had failed to assert that he is in

22

custody in violation of federal law. ECF No. 8. Accordingly, the court granted petitioner thirty

23

days to file an amended petition and warned him that failure to comply would result in this action

24

being dismissed. The time for acting has passed and petitioner has not filed an amended petition,

25

or otherwise responded to the court’s order.

26

A party’s failure to comply with any order or with the Local Rules “may be grounds for

27

imposition by the Court of any and all sanctions authorized by statute or Rule or within the

28

inherent power of the Court.” E.D. Cal. Local Rule 110. The court may dismiss an action with or
1

1

without prejudice, as appropriate, if a party disobeys an order or the Local Rules. See Ferdik v.

2

Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse discretion in

3

dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an amended

4

complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d 1439,

5

1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule

6

regarding notice of change of address affirmed).

7

Accordingly, it is hereby ORDERED that this action is DISMISSED and the court

8

declines to issue a certificate of appealability.

9

Dated: May 31, 2017.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2