(HC) Windsor v. Martinez, No. 2:2015cv02374 - Document 16 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 12/9/2016 RECOMMEDING respondent's 14 motion to dismiss be granted; and the District Court decline to issue a certificate of appealability. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)

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(HC) Windsor v. Martinez Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEE ROCKY WINDSOR 12 Petitioner, 13 14 No. 2:15-cv-2374 WBS GGH v. FINDINGS AND RECOMMENDATION JOEL MARTINEZ, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 17 18 pursuant to 28 U.S.C. § 2254. On October 31, 2016 Prisoner was ordered to show cause, within thirty (30) days, why he 19 20 failed to oppose Respondent’s April 1, 2016 Motion to Dismiss his Petition (failure to exhaust), 21 why that failure should not be deemed a waiver of any opposition, and therefore why the Motion 22 to Dismiss should not be granted. ECF No. 15. The thirty day period has expired and Petitioner 23 has filed no explanation for the failure to oppose or otherwise responded to the court’s Order. The Petitioner was cautioned that failure to respond to the Order to Show Cause, or to file 24 25 an Opposition to the pending Motion to Dismiss, would result in a recommendation that this 26 action be dismissed. The undersigned has reviewed the Motion and finds that it has merit. 27 28 //// 1 Dockets.Justia.com 1 Accordingly, it is hereby recommended that: 2 1. Respondent’s motion to dismiss, filed April 1, 2016, be granted; and 3 2. The District Court decline to issue a certificate of appealability. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 6 (14) days after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 9 shall be served and filed within seven (7) days after service of the objections. The parties are 10 advised that failure to file objections within the specified time may waive the right to appeal the 11 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 Dated: December 9, 2016 13 14 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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