Caldwell v. People of the State of California

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/16/2019 RECOMMENDING that this action be dismissed without prejudice. Referred to Senior Judge William B. Shubb. Objections due within 14 daysafter being served with these findings and recommendations. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DERRICK R. CALDWELL,

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Petitioner,

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v.

No. 2:18-cv-0712 WBS CKD P

FINDINGS AND RECOMMENDATIONS

MICHAEL SEXTON,

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Respondent.

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By order filed December 5, 2018, petitioner’s petition for a writ of habeas corpus was

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dismissed and thirty-days leave to file an amended petition was granted. Petitioner was warned

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that failure to file an amended petition would result in a recommendation that this action be

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dismissed. The thirty-day period has now expired, and petitioner has not filed an amended

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petition.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without
prejudice.

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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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner
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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district

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court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of

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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed

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within fourteen days after service of the objections. The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 16, 2019

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cald0712.fta

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