Duran v. Frauenheim

Filing 35

ORDER signed by District Judge Daniel J. Calabretta on 9/25/23 ADOPTING in full 33 Findings and Recommendations and DISMISSING this action without prejudice for failure to prosecute. The Court DECLINES to issue the certificate of appealability. CASE CLOSED (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE ANTONIO DURAN,

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No. 2:17-cv-2122 DJC AC P

Petitioner,
v.

ORDER

SCOTT FRAUENHEIM,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On June 22, 2023, the Magistrate Judge filed findings and recommendations

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herein which were served on all parties and which contained notice to all parties that

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any objections to the findings and recommendations were to be filed within fourteen

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days. (ECF No. 33.) Neither party has filed objections to the findings and

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recommendations.

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Although it appears from the file that Petitioner’s copy of the findings and

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recommendations was returned, Petitioner was properly served. It is the petitioner’s

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responsibility to keep the court apprised of his current address at all times. Pursuant

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to Local Rule 182(f), service of documents at the record address of the party is fully
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effective.

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The Court has reviewed the file and finds the findings and recommendations to

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be supported by the record and by the magistrate judge’s analysis. The Court issued

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an additional order to show cause within fourteen days why this action should not be

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dismissed as moot and for failure to prosecute. (ECF No. 34.) Plaintiff has not

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responded to that order and it was also returned.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed June 22, 2023 (ECF No. 33), are

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adopted in full;

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2. This action is dismissed without prejudice for failure to prosecute. See L.R.
183(b).

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3. The Court declines to issue the certificate of appealability referenced in 28

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U.S.C. § 2253 as Petitioner has not made a substantial showing of the denial of a

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constitutional right, see 28 U.S.C. § 2253(c)(2).

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4. The Clerk of the Court is directed to close this case.

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IT IS SO ORDERED.

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Dated:

September 25, 2023
Hon. Daniel J. Calabretta
UNITED STATES DISTRICT JUDGE

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Dura2122.803.hc

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