Mills v. Attorney General
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/21/2017 RECOMMENDING this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KENNETH WAYNE MILLS,
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Petitioner,
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No. 2:17-cv-2157 GEB CKD P
v.
FINDINGS AND RECOMMENDATIONS
ATTORNEY GENERAL, STATE OF
CALIFORNIA, et al.,
Respondents.
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On November 9, 2017, petitioner was granted thirty days’ leave to file a petition for writ
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of habeas corpus on the form used by this district and provided to petitioner by the Clerk of the
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Court. Petitioner was warned the form must be filled out completely and accurately. The thirty
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day period has now expired, and petitioner has not filed a petition for writ of habeas corpus on the
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court’s form.1
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without
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prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).
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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, petitioner may file written
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On November 17, 2017, petitioner submitted a completed form-42 U.S.C. § 1983 complaint
which is generally used by prisoners to challenge conditions of confinement.
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objections with the court. Such a document should be captioned “Objections to Magistrate
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Judge’s Findings and Recommendations.” In his objections petitioner may address whether a
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certificate of appealability should issue in the event he files an appeal of the judgment in this
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case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or
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deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as
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here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should
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issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the
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district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it
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debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris
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v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484
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(2000)). Petitioner is advised that failure to file objections within the specified time may waive
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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: December 21, 2017
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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mill2157.fta
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