(HC) Mills v. Attorney General, No. 2:2017cv02157 - Document 20 (E.D. Cal. 2017)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 12/21/2017 RECOMMENDING this action be dismissed without prejudice. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH WAYNE MILLS, 12 Petitioner, 13 14 15 No. 2:17-cv-2157 GEB CKD P v. FINDINGS AND RECOMMENDATIONS ATTORNEY GENERAL, STATE OF CALIFORNIA, et al., Respondents. 16 On November 9, 2017, petitioner was granted thirty days’ leave to file a petition for writ 17 18 of habeas corpus on the form used by this district and provided to petitioner by the Clerk of the 19 Court. Petitioner was warned the form must be filled out completely and accurately. The thirty 20 day period has now expired, and petitioner has not filed a petition for writ of habeas corpus on the 21 court’s form.1 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without 22 23 prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 26 after being served with these findings and recommendations, petitioner may file written 27 28 1 On November 17, 2017, petitioner submitted a completed form-42 U.S.C. § 1983 complaint which is generally used by prisoners to challenge conditions of confinement. 1 1 objections with the court. Such a document should be captioned “Objections to Magistrate 2 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 3 certificate of appealability should issue in the event he files an appeal of the judgment in this 4 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 5 deny a certificate of appealability when it enters a final order adverse to the applicant). Where, as 6 here, a habeas petition is dismissed on procedural grounds, a certificate of appealability “should 7 issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the 8 district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 9 debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 10 v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 11 (2000)). Petitioner is advised that failure to file objections within the specified time may waive 12 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 Dated: December 21, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 1 mill2157.fta 20 21 22 23 24 25 26 27 28 2
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