Gomez v. Unknown
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/12/2018 RECOMMENDING this action be dismissed without prejudice to the filing of a petition for failure to obey a court order and to prosecute pursuant to Fed.R.Civ.P. 41(b); the Clerk be directed to close this file; and a certificate of appealability should not issue. Referred to Judge John A. Mendez; 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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ALFREDO GOMEZ,
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No. 2:18-cv-01738-JAM-GGH
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
UNKNOWN,
Respondent.
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Petitioner, a state prisoner, filed a motion for stay and abeyance on June 15, 2018 seeking
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additional time to file a petition for habeas corpus on to allow him to exhaust previously
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unappealed claims. EC No. 1. On July 15, 2018, the magistrate judge to whom this matter was
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referred issued an Order, ECF No. 4, denying without prejudice petitioner’s motion, pointing out
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that without a petition on file such a motion was ineffective to toll the statute of limitations that
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applies to habeas corpus matters. Petitioner was advised to file a petition and then move for stay
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and abeyance. The Clerk was directed to provide petitioner with this court’s habeas corpus
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petition form and its application form with regard to acquisition of in forma pauperis status. Id.
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Petitioner took no action in response to that Order, and on November 5, 2018 this court issued an
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Order to Show Cause (“OSC”) why the pending case should not be dismissed for failure to act on
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the earlier order. Petitioner was advised that failure to respond to the OSC within thirty (30) days
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would result in a recommendation that the district court dismiss the action for failure to obey a
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court order and failure to prosecute. That 30 day time limit has come and gone without any new
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filing by the petitioner.
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In light of the foregoing, IT IS HEREBY RECOMMENDED that:
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1.
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This action be dismissed without prejudice to the filing of a petition for failure to
obey a court order and to prosecute pursuant to Federal Rule of Civil Procedure 41(b);
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2.
The Clerk of the Court should close this file;
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3.
No Certificate of Appealability should issue.
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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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objections with the court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Any response to the objections shall be filed and served within
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fourteen days after service of the objections. Petitioner is advised that failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: December 12, 2018
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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