An v. Baughman

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/30/2017 RECOMMENDING the petition be dismissed without prejudice for failure to comply with court orders and failure to prosecute this action. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DAVID T. AN,

12

No. 2:16-cv-2657 KJM DB P
Petitioner,

13

v.

14

D. BAUGHMAN,

15

FINDINGS AND RECOMMENDATIONS

Respondent.

16
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

17
18

under 28 U.S.C. § 2254. In an order filed June 27, 2017, the court dismissed the petition and

19

gave petitioner thirty days to file an amended petition. (ECF No. 11.) On August 28, 2017, the

20

court granted petitioner’s request for an extension of time to file an amended petition. (ECF No.

21

13.) The amended petition was due on October 13, 2017.
The due date for the amended petition has passed and petitioner has not filed an amended

22
23

petition or otherwise responded to the court’s August 28 order. In the June 27 order, petitioner

24

was warned that his failure to file an amended petition may result in dismissal of this action.
Accordingly, IT IS HEREBY RECOMMENDED that the petition be dismissed without

25
26

prejudice for failure to comply with court orders and failure to prosecute this action. See E.D.

27

Cal. R. 110; Fed. R. Civ. P. 41(b).

28

////
1

1

These findings and recommendations will be submitted to the United States District Judge

2

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

3

after being served with these findings and recommendations, petitioner may file written

4

objections with the court. The document should be captioned “Objections to Magistrate Judge's

5

Findings and Recommendations.” Petitioner is advised that failure to file objections within the

6

specified time may result in waiver of the right to appeal the district court’s order. Martinez v.

7

Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate

8

of appealability should issue in the event he files an appeal of the judgment in this case. See Rule

9

11, Rules Governing § 2254 Cases (the district court must issue or deny a certificate of

10

appealability when it enters a final order adverse to the applicant).

11

Dated: October 30, 2017

12
13
14
15
16
17

DLB:9
DLB1/prisoner-habeas/an2657.fr

18
19
20
21
22
23
24
25
26
27
28
2