Ricord Huber v. Lizarraga

Filing 12

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 9/15/2017 ORDERING the Clerk to assign a district judge to this case and RECOMMENDING this case be dismissed without prejudice. Assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)

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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 RICORD D. HUBER, 12 No. 2:17-cv-0292 DB P Petitioner, 13 v. 14 J. LIZARRAGA, 15 ORDER AND FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 under 28 U.S.C. § 2254. On March 9, 2017, petitioner was ordered to submit the $5.00 filing fee 19 to proceed with this case. In a document filed March 27, 2017, petitioner stated that he was 20 enclosing the payment. However, the filing received by the court did not contain any payment. 21 On August 3, 2017, petitioner was given another opportunity to submit the appropriate 22 filing fee within thirty days. Petitioner was warned that his failure to do so would result in a 23 recommendation that this action be dismissed. Petitioner has not paid the filing fee or otherwise 24 responded to the court’s August 3 order. 25 26 27 28 Accordingly, the Clerk of the Court IS HEREBY ORDERED to assign a district judge to this case; and IT IS HEREBY RECOMMENDED that this case be dismissed without prejudice. See E.D. Cal. R. 110; Fed. R. Civ. P. 41(b). 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: September 15, 2017 12 13 14 15 16 17 18 DLB:9 DLB1/prisoner-habeas/hube0292.final fr 19 20 21 22 23 24 25 26 27 28 2

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