(HC) Bailey v. Clark, No. 2:2009cv01856 - Document 39 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 8/23/2010 RECOMMENDING that respondent's 15 motion to dismiss be GRANTED. Referred to Judge Garland E. Burrell, Jr.; Objections due w/in 14 days. (Yin, K)
Download PDF
(HC) Bailey v. Clark Doc. 39 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JAMES BAILEY 11 12 13 14 Petitioner, No. 2: 09-cv-1856 GEB KJN P Respondent. FINDINGS & RECOMMENDATIONS vs. KEN CLARK, 15 / 16 Petitioner is a state prisoner proceeding without counsel with a petition for writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to 18 dismiss filed September 28, 2009. 19 On July 6, 2010, the undersigned denied petitioner’s fifth motion for extension of 20 time to file an opposition. The July 6, 2010, order stated that petitioner had ample opportunity 21 during the ninth months since respondent filed his motion to prepare his opposition. Petitioner’s 22 opposition was ordered due on August 12, 2010. Petitioner did not file an opposition. 23 Local Rule 230(l) provides in part: “Failure of the responding party to file written 24 opposition or to file a statement of no opposition may be deemed a waiver of any opposition to 25 the granting of the motion . . . .” Petitioner’s failure to oppose should be deemed a waiver of 26 opposition to the granting of the motion. 1 Dockets.Justia.com 1 2 Accordingly, IT IS HEREBY RECOMMENDED that respondent’s September 28, 2009 motion to dismiss (Dkt. No. 15) be granted. 3 These findings and recommendations are submitted to the United States District 4 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 5 days 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.” Any reply to the objections 8 shall be served and filed within fourteen days after service of the objections. The parties are 9 advised that failure to file objections within the specified time may waive the right to appeal the 10 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: August 23, 2010 12 13 14 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 15 16 bai1856.fr 17 18 19 20 21 22 23 24 25 26 2