(HC) Sargent v. Martell, No. 2:2010cv02249 - Document 16 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/2/11 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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(HC) Sargent v. Martell Doc. 16 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CORBY SARGENT, Petitioner, 11 vs. 12 13 MICHAEL MARTEL, Respondent. 14 FINDINGS AND RECOMMENDATIONS / 15 Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus. 16 17 No. CIV S-10-2249 MCE EFB P See 28 U.S.C. § 2254. 18 On January 20, 2011, respondent moved to dismiss the petition on the ground that it is 19 barred by the applicable statute of limitations. On March 18, 2011, the court informed petitioner 20 of the requirements for filing an opposition to any motion to dismiss. That order gave petitioner 21 twenty-one days to file an opposition or statement of non-opposition and warned him that failure 22 to do so would result in a recommendation that this action be dismissed. 23 //// 24 //// 25 //// 26 //// 1 Dockets.Justia.com 1 2 3 4 The time to act has passed and petitioner has not filed an opposition or a statement of no opposition nor otherwise responded to the March 18, 2011 order. Accordingly, it is RECOMMENDED that this action be dismissed without prejudice. Fed. R. Civ. P. 41(b); Rule 12, Rules Governing § 2254 Cases. 5 These findings and recommendations are submitted to the United States District Judge 6 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 10 within the specified time may waive the right to appeal the District Court’s order. Turner v. 11 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 12 his objections petitioner may address whether a certificate of appealability should issue in the 13 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 14 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 15 enters a final order adverse to the applicant). 16 Dated: May 2, 2011. 17 18 19 20 21 22 23 24 25 26 2