(HC) Lark v. Sisto, No. 2:2009cv00862 - Document 12 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/6/2010 RECOMMENDING that this action be dismissed w/out prejudice. Referred to Judge John A. Mendez; Objections due w/in 14 days. (Yin, K)
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(HC) Lark v. Sisto Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JOSHUA LARK, Petitioner, FINDINGS AND RECOMMENDATIONS vs. 12 13 No. CIV S-09-0862 JAM EFB P Respondent. 11 D.K. SISTO, 14 / 15 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. 16 17 See 28 U.S.C. § 2241. 18 On August 13, 2010, respondent moved to dismiss the petition for failure to exhaust and 19 as barred by the statute of limitations. On September 23, 2010, the court informed petitioner of 20 the requirements for filing an opposition to any motion to dismiss. That order gave petitioner 30 21 days to file an opposition or statement of non-opposition and warned him that failure to do so 22 would result in a recommendation that this action be dismissed. 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 September 23, 2010 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; L. R. 110. 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: December 6, 2010. 15 16 17 18 19 20 21 22 23 24 25 26 2