Cedeno v. State of Montana et al

Filing 4

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 3 in full. A certificate of appealability is DENIED. Signed by Judge Brian Morris on 8/4/2017. Mailed to Cedeno (TAG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION

ROBERTO CEDENO,

CV-17-57-H-BMM-JTJ

Petitioner,
vs.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

STATE OF MONTANA, BUREAU
OF PRISONS AND PAROLE, DAN
O’FALLON,
Respondents.

Petitioner Roberto Cedeno filed a Petition for Writ of Habeas Corpus with
this Court. (Doc. 1.) Cedeno captioned the petition, however, for the Montana
Supreme Court. Id. The Court ordered Cedeno to clarify whether he actually
intended to file in this Court and provided him with the Court’s standard habeas
corpus form and the form motion to proceed in forma pauperis. (Doc. 2.) The
Court informed Cedeno that it would dismiss the matter if he failed to comply with
the Court’s Order. Id. at 2. Cedeno has not complied. United States Magistrate
Judge John Johnston entered Findings and Recommendations in this matter on July
17, 2017. (Doc. 3.) Neither party filed objections.

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When a party makes no objections, the Court need not review de novo the
proposed Findings and Recommendations. Thomas v. Arn, 474 U.S. 140, 149-52
(1986). This Court will review Judge Johnston’s Findings and Recommendations,
however, for clear error. McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
Judge Johnston recommends that the Court dismiss Cedeno’s petition under
Rule 41(b) of the Federal Rules of Civil Procedure. (Doc. 3 at 1-2.) Judge Johnston
notes that Rule 41(b) recognizes the Court’s authority to dismiss actions for failure
to prosecute or for failure to comply with court orders. Id. at 2. The Court must
weigh five factors in dismissing a habeas petition due to failure to comply with a
Court order. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002). Judge
Johnston identifies and analyzes these five factors and determines that the Court
should dismiss Cedeno’s petition. (Doc. 3.) The Court gave Cedeno an additional
chance to comply with the Court’s pleading requirements when it issued the Order
represented by Document Two. Cedeno failed to take this opportunity.
The Court has reviewed Judge Johnston’s Findings and Recommendations
for clear error. The Court finds no error in Judge Johnston’s Findings and
Recommendations and adopts them in full.
IT IS ORDERED that Judge Johnston’s Findings and Recommendations
(Doc. 3), is ADOPTED IN FULL.
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IT IS FURTHER ORDERED that the Clerk of Court shall enter, by
separate document, a judgment in favor of Respondents and against Petitioner.
IT IS ALSO ORDERED that a certificate of appealability is DENIED.
DATED this 4th day of August, 2017.

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