-CKD (HC) Cervantes v. State of California, No. 2:2010cv03107 - Document 15 (E.D. Cal. 2011)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K Delaney on 08/02/11 ORDERING that the clerk of the court assign a District Judge to this case. U.S. District Judge Kimberly J. Mueller randomly assigned to this action. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 21 days.(Plummer, M)

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-CKD (HC) Cervantes v. State of California Doc. 15 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ELIGIO CERVANTES, 11 12 Petitioner, No. CIV-S-10-3107 CKD P vs. 13 STATE OF CALIFORNIA, 14 Respondent. 15 16 ORDER AND / FINDINGS AND RECOMMENDATIONS Petitioner is a California civil detainee proceeding pro se with a petition for writ 17 of habeas corpus under 28 U.S.C. § 2254. On February 8, 2011, the court dismissed petitioner’s 18 original petition because petitioner challenged a Lassen County conviction for child molestation 19 and the fact that he has been civilly committed under California’s Sexually Violent Predators Act 20 (Cal. Welf. & Inst. Code § 6000 et seq.) despite the fact that Rule 2(e) of the Rules Governing 21 Section 2254 Cases permits habeas petitioners to challenge only one judgment of one state court 22 per habeas petition. Petitioner was granted leave to submit an amended petition to challenge his 23 Lassen County conviction for child molestation or his commitment under California’s Sexually 24 Violent Predators Act, but not both. Petitioner was warned that failure to file an amended 25 petition in compliance with February 8, 2011 order would result in a recommendation that this 26 action be dismissed. 1 Dockets.Justia.com 1 On February 22, 2011, petitioner filed an amended habeas petition in which he, 2 again, challenges his Lassen County conviction and his civil commitment. Because petitioner 3 has failed to comply with Rule 2(e) of the Rules Governing Section 2254 Cases and the February 4 8, 2011 order of this court, the court will recommend that this action be dismissed without 5 prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 6 7 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case; and 8 9 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 10 These findings and recommendations are submitted to the United States District 11 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 12 one days after being served with these findings and recommendations, petitioner may file written 13 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 14 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 15 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 16 F.2d 1153 (9th Cir. 1991). 17 DATED: August 2, 2011 /s/ Carolyn K. Delaney 18 United States Magistrate Judge 19 20 21 1 cerv3107.114 22 23 24 25 26 2

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