(HC) Kimbrell v. Moore et al, No. 2:2008cv01044 - Document 13 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/1/2010 RECOMMENDING that this action be dismissed w/out prejudice.Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due w/in 14 days. (Yin, K)
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(HC) Kimbrell v. Moore et al Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MICHAEL J. KIMBRELL, Petitioner, 11 vs. 12 13 STEVE MOORE, et al., Respondents. 14 FINDINGS AND RECOMMENDATIONS / 15 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 16 17 No. CIV S-08-1044 FCD EFB P U.S.C. § 2254. 18 On September 4, 2009, respondents moved to dismiss the petition on the ground that 19 petitioner has failed to exhaust his available state remedies. On December 4, 2009, the court 20 informed petitioner of the requirements for filing an opposition to any motion to dismiss. That 21 order gave petitioner an additional 30 days to file an opposition or statement of non-opposition 22 and warned him that failure to do so could result in dismissal. The 30 days have passed and petitioner has not filed an opposition or a statement of no 23 24 opposition nor otherwise responded to the December 4, 2009 order. 25 //// 26 //// 1 Dockets.Justia.com 1 2 Accordingly, it is RECOMMENDED that this action be dismissed without prejudice. Fed. R. Civ. P. 41(b); Rule 12, Rules Governing § 2254 Cases. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 within the specified time may waive the right to appeal the District Court’s order. Turner v. 9 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 10 his objections petitioner may address whether a certificate of appealability should issue in the 11 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 12 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 13 enters a final order adverse to the applicant). 14 Dated: March 1, 2010. 15 16 17 18 19 20 21 22 23 24 25 26 2
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